,NO. 14893 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

GERALD H. BOSTWICK and 

MARJORIE E. BOSTWICK, 

Plaintiff and Respondent, 

THE DEPARTMENT OF HIGHWAYS 

OF THE STATE OF MONTANA, 

Defendant and Appellant. 

Appeal from: District Court of the Fifth Judicial District, 

Honorable Frank E. Blair, Judge presiding. 

Cou-.~:~el of Record : 

For Appellant: 

Terry Clausen, Dept. of Highways, Helena, Montana 

For Respondent: 

Frank Davis, Dillon, Montana 

Submitted on briefs: April 3, 1980 

~ecided: JUN i 1 

Filed: JUFt ' 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Defendant Department of Highways appeals from an interlocutory decision of the Beaverhead County District Court, 

sitting without a jury, that plaintiffs were entitled to 

compensation for the loss of reasonable access to their 

property. We dismiss the appeal without prejudice on the 

grounds that a final judgment has not yet been entered in 

this case and the interlocutory order is not appealable. 

Plaintiffs are the owners 3f a warehouse located on 

East Helena and Washington Streets in Dillon, Montana. The 

warehouse serves the plaintiffs' own trucking needs and provides rental space for various transportation and moving 

lines. Trucking firms which use the warehouse unload their 

storage through a freight door facing East Helena Street. 

Approaching truckers either back their trucks to the freight 

door or parallel park on the sidewalk between East Helena 

Street and the door. 

In 1977 defendant Department of Highways placed signal 

poles on the sidewalk and traffic island near the door. 

These poles prevent approaching trucks from parking parallel 

to the warehouse. Since the installation of these poles, 

virtually all of plaintiffs' customers have sought storage 

space elsewhere. 

On January 25, 1978, plaintiffs filed a complaint 

seeking damages of $100,000 for the Department of Highway's 

denial of access to their warehouse. The Department filed 

an answer which admitted that the signal poles were erected 

on East Helena Street but denied that a taking of plaintiffs' 

property had occurred. 
At trial plaintiff Gerald Bostwick testified that the 

warehouse would be worth $100,000 if it could be used to 

rent storage space. He stated that he averaged $600 per 

month from rentals prior to 1965 and $1,000 per month between 1965 and 1970. Since 1977 all but one of plaintiffs' 

customers have stopped using the warehouse and, according to 

plaintiffs, the value of the warehouse now is only $20,000. 

Plaintiff Bostwick on cross-examination testified that 

he maintained a regular set of books which would support his 

testimony as to business loss. He did not, however, produce 

the books. Counsel for the Department moved the trial court 

to strike Bostwick's testimony because the written records 

were the best evidence of business profits and losses. The 

trial court denied the motion. 

The case was tried on the issue of whether plaintiffs 

were entitled to compensation, and if so, how much. Both 

parties submitted proposed findings of fact and conclusions 

of law at the end of the trial, and the trial court adopted 

verbatim the findings and conclusions submitted by plaintiffs. These findings and conclusions admitted that testimony concerning damages was general and somewhat speculative. 

They also contained a provision, however, that the trial 

court reserved the right to conduct a special hearing on 

damages, if after ninety days the parties were unable to 

reach agreement on this amount. The last paragraph of the 

findings and conclusions stated, "let judgment be entered 

accordingly." The trial court later denied the Department's 

motion to amend the findings and conclusions. 

Judgment was never entered. The Department has appealed 

from the so-called findings and conclusions entered by the 

trial court. The essential issues raised the Department 
are its contentions that plaintiffs failed to establish 

either a compensable taking or damages. In the absence of a 

final judgment, we will not reach either of these issues. 

The trial &ohrtls order determined cornpensability but 

reserved the question of damages for a later hearing. As 

such, the order was interlocutory and not appealable. See 

State ex rel. Great Falls Nat. Bank v. ~istrict Court 

(1969), 154 Mont. 336, 463 P.2d 326; Rule 1, M.R.App.civ.~. 

The appeal is dismissed without prejudice. 

2&gp. akd4 

Chief Justice 

We concur: 

.,-:, ;< ,y k% L.~--- 
Mr. Justice Daniel J. Shea concurring: 

I concur with the dismissal of this appeal upon the 

grounds that it is not ready for review. Rule 1, M.R.App. 

Civ.P. coupled with the failure to comply with Rule 54(b) 

(certification of questions for appeal which are not otherwise 

final), clearly requires this result. See Rob Roy v. Neibauer 

(19801, - Mont. -I - P.2d - , 37 St.Rep. 897, where this 

Court, because of the persistent failure of the district courts 

and the attorneys of this state to comply with Rule 1 and Rule 

54(b), we set out the procedures and requirements for obtaining 

certification. 

It is clear that the District Court proceeded in blatant 

violation of the procedural rules governing trials. In essence, 

he granted the plaintiffs two bites of the apple. I am aware of 

no powers of the trial court to in effect open the trial up for 

an additional hearing on damages in the event the parties cannot 

reach agreement as to the damages. The question of damages was 

fully litigated at trial and the trial court has no right to 

impose an additional evidentiary hearing on the state in the 

event it does not capitulate to the plaintiffs' demands. Either 

the record before the trial court establishes the right to compensation and the amount to which plaintiffs are entitled, or it 

does not. For this reason, upon this dismissal without prejudice, 

and remand to the District Court, I would direct the District 

Court to enter judgment based on the record before it. This 

court should not ignore the fact that the State of Montana also 

has rights in condemnation actions, and they have been manifestly 

abused in this case.