### ,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 

## i1 Filed: 

## JUFt 'Mr. Chief JusticeFrank I. 

### Haswell delivered the Opinion of the Court.
Defendant Department of Highways appeals from an interlocutory decisionof the Beaverhead County DistrictCourt, sittingwithout a jury, that plaintiffs were entitled to compensation for the lossof reasonable access to their property. We dismiss the appeal without prejudice on the grounds that a finaljudgment has not yetbeen entered in this

### case and the interlocutoryorder 

### isnot appealable. Plaintiffs

### are the owners 3f a warehouse located on East Helena and Washington StreetsinDillon, Montana. The warehouse serves the plaintiffs' own trucking needs and provides rental space forvarious transportation and moving lines. Trucking firms which use thewarehouse unload their storage through 

### a freightdoor facing East Helena Street. Approaching truckers either back their trucks to the freight door or parallelpark on the sidewalk between East Helena Streetand 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 tothe warehouse. Since the installation of these poles, virtually 

### allof 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 theirwarehouse. The Department filed
an answer which admitted that the signal poles 

### were erected
on EastHelena Streetbut denied that a taking of plaintiffs' property had occurred.Attrialplaintiff Gerald Bostwick testified that the warehouse would be worth $100,000 if it could be used to rent storage space. He stated thathe averaged $600 per month from rentals prior to 1965 and $1,000 per month between 1965 and 1970. Since 1977 allbut 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 tobusiness loss. He did not, however, produce the books. Counsel for the Department moved the trialcourt to strikeBostwick's testimony because the written records
were the best evidence of business profits and losses. The trialcourt denied themotion. The 

### case was tried on the issue of whether plaintiffs


### were entitled tocompensation, and if so, how much. Both parties submitted proposed findings of factand conclusions of law atthe 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 alsocontained a provision, however, that the trial courtreserved the right toconduct a special hearing on damages, if afterninety days the partieswere unable to reach agreement on this amount. The lastparagraph of the findings and conclusions stated, "letjudgment be entered accordingly." The trialcourt later denied the Department's motion toamend 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 issuesraised the Departmentare

### its contentions that plaintiffs failed toestablish either a compensable taking ordamages. In the absence of 

### a finaljudgment, 

### we

### willnot reach either of these issues. The 

### trial &ohrtlsorder 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 FallsNat. Bank 

### v. ~istrict Court (1969), 154Mont. 336, 463 P.2d 326; Rule 1, M.R.App.civ.~. The appeal isdismissed without prejudice. 

# 2&gp. akd4 Chief Justice
Weconcur: 

# .,-:,;< 

# ,y

# k% L.~---

### Mr. JusticeDaniel J. 

### Shea concurring:

I 

### concurwith the dismissalof 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)

(certificationof questions for appealwhich 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 theplaintiffs 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 damageswas 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, Iwould direct the District Court to enter judgmentbased 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.