IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA, ACTING 

BY AND THROUGH THE DEPARTMENT J UN 20 1983 OF HIGHWAYS OF THE STATE OF 

MONTANA, 

CLERK EUPI?EF,~E. COURT 

plaintiff and Appellant STATE OF K~OHTAN~ 

VS. 

CLINTON L. and JACQUELINE J. 

HOWERY, Husband and Wife, as 

Joint Tenants, and STATE BANK 

& TRUST COMPANY, as Mortgagee, 

Defendants and Respondents. 

Appeal from: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead 

Hon. Frank E. Blair, Judge presiding. 

Counsel of Record: 

For Appellant: 

W. D. Hutchison argued, Helena, Montana 

For Respondents: 

Max Hansen argued, Dillon, Montana 

Corette, Smith, Pohlman & Allen, Butte, Montana 

Kendrick A. Smith argued, Butte, Montana 

submitted: March 7, 1983 

Decided: Juae 20, 1983 

Filed: 

tJUM 2 0 1983 

- 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion 

of the Court. 

The Montana Department of Highways brought this action 

in the Fifth Judicial District Court, Beaverhead County, for 

the purpose of obtaining right-of-way for a frontage road 

along Interstate 15. Clinton and Jacqueline Howery owned the 

0.76 acre tract subject to the condemnation action. Trial on 

the issue of just compensation was had after the Department 

of Highways appealed from an award by the Highway Commission. 

The jury returned a verdict in favor of the Howerys in 

the amount of $243,475.00; $3,750.00 was awarded as damages 

for the property actually taken and $239,725.00, as damages 

to the remainder. A final judgment was entered in the amount 

of the verdict plus interest, costs and fees. The Department 

of Highways appeals from denial of their motion for a new 

trial, raising three issues: 

1) Whether the District Court erred in admitting the 

testimony of the landowner concerning the effects of the 

frontage road on his remaining property? 

2) Whether the jury's verdict of $239,725.00 as damages 

to the remainder was excessive, given under the influence of 

passion or prejudice and supported only by speculative 

testimony? 

3) Whether the District Court erred in refusing the 

Highway Department's proposed instructions, numbered 20 and 

22? 

We affirm. 

The Howerys purchased their property which is located 

about 5 miles south of Dillon, Montana, in 1974. At that 

time they knew that a new four lane highway, Interstate 15, 

was to be constructed between Highway 91 and the 3.26 acre 

tract that they purchased; the Highway Department previously 
had purchased right of way for this purpose from Howerys' 

predecessors in interest. 

Taking the proximity of the proposed interstate into 

account, the Howerys constructed two specially designed total 

containment buildings on their property in 1975. 

The Howerys raise hogs for market. The containment 

buildings are designed to eliminate pig stress, thus 

improving growth rate at lower feed levels, by controlling 

the environment during the life cycle of pigs from birth to 

market. Factors which cause pig stress, such as heat, noise, 

vibration and dust, are minimized or eliminated through 

building design. 

The proposed frontage road was to be constructed 

approximately 92 feet from the containment unit buildings. 

The primary issue during the trial was the extent to which 

the taking for the frontage road would damage the remainder 

of the Howery property. 

Mr. Howery testified that the increase in heat, noise, 

vibration and dust that would be produced by the traffic on 

the frontage road would render his containment unit buildings 

unuseable and his hog raising operation uneconomical. 

Therefore, using a cost approach appraisal, Mr. Howery gave 

his opinion that the depreciation in va-lue to the remaining 

land and buildings, less any salvage value of the buildings 

a.nd the unaffected value of their home and unimproved land, 

was $292,725.00; he further valued the land actually taken at 

$2,250.00. 

The Highway Department contends Mr. Howery's testimony 

as to depreciation in value to the remainder should have been 

refused. The Department asserts that the Howerys failed to 

establish (1) how an increase in pig stress would result from 

the proposed frontage road and what would be the magnitude of 
the increase, and (2) whether the proposed frontage road 

would be paved or gravel. Lacking such a proper foundation, 

the Department argues that Mr. Howery's testimony was 

inherently unreasonable. 

The Department's "reasonableness" argument stems from a 

landowner-witness rule this Court reconfirmed in State v. 

Marsh, (1974) 165 Mont. 198, 527 P.2d 573. Marsh clarified 

that in taking cases, the landowner could testify as to value 

so long as (1) the testimony is reasonable and (2) the value 

testified to is for the uses to which the landowner is 

putting the land. Additionally, if the landowner intended to 

testify as to value for other purposes, the landowner "must 

have 'some peculiar means of forming an intelligent and 

correct judgment . . . beyond what is presumed to be 

possessed by men generally.'" 165 Mont. at 203, 527 P.2d at 

The rule of Marsh is not directly applicable to the 

instant case. Here the State is not contesting the ability 

of a landowner to give his opinion as to market value before 

taking; what is at issue is the competence of a landowner to 

testify as to the causal link between the taking and any 

damage to remainder, and ultimately to the depreciation in 

market value of the remainder as a result of the taking. 

"As a general rule, a witness who is competent to 

give the value of particular real estate may give 

his opinion of its value immediately before 

particular damage to it, and its value immediately 

after such damage and as affected thereby, provided 

the witness discloses sufficient knowledge of the 

property in both conditions . . . If an estimate of 

value or the cause of damage requires special 

knowledge, persons uninformed as to the facts, and 

without learning in the scientific principles of 

which they speak, are not competent . . . " 27 

Am.Jr.2dI Eminent Domain, S426, pp. 322-323. 
Nichol explains that where the issue is whether the 

construction of a public work causes a decrease in market 

value of the land remaining after a taking: 

"[ilt is, of course, competent for the owner to 

point out, either himself or by means of duly 

qualified expert witnesses, the particulars in 

which the land has been or will be damaged, such as 

the inconvenient size and shape in which it is 

left, the interference with access, the increased 

accumulation of surface water, the noise and dirt 

from the use of the public work, and the like." 

5 Nichol on Eminent Domain, S23.3, pp. 23-20, 21. The 

witness may describe the injuries to the property and its 

condition, state the circumstances affecting the value of the 

property in its damaged state, and testify as to the value of 

the property before and after the injury. Nichol, supra, p. 

The record indicates that Mr. Howery was both informed 

about the facts concerning the proposed frontage road and 

very knowledgeable in the business of raising pigs. Mr. 

Howery had observed the dust associated with the unpaved 

extension of the frontage road already in existence 

approximately one mile south of his facility. Additionally 

he testified that in response to his inquiries about the 

surface of the proposed frontage road, he was given different 

answers: one, that the road would be paved; another, that it 

would be gravel. However he stated the choice of surface 

would not alter his opinion that the containment buildings 

would be rendered unusuable by the proximity of the proposed 

frontage road. 

Additionally, Mr. Howery testified that prior to taking, 

the only roads close to his facilities were unmaintained, 

private access roads which generated very little traffic. 

The proposed frontage road, which will pass within 92 feet of 
Mr. Howery's confinement facilities, links two highways and 

serves two saw mills. 

Mr. Howery further testified that sows are affected by 

the vibration caused by a truck passing nearby his facility 

and that if the noise of the truck is "awfully loud," stress 

may also result. He also stated increases in heat produce 

stress in his animals. 

Mr. Howery had considerable experience in the swine 

industry. He was reared on a ranch in Wyoming that raised 

pigs; since his marriage, he and his family ha.ve continued to 

raise pigs. His educational background includes two years in 

animal husbandry at Northwest Community College, Powell, 

Wyoming and about two years in biology at Western Montana 

College, Dillon, Montana. Additionally, for the past seven 

years, he has studied the swine industry by subscribing to 

and reading current national publications. And prior to 

initiating his total confinement operation, Mr. Howery 

consulted with several representatives from different 

building manufacturers and veterinarians associated with 

Ralston Purina Company in St. Louis. 

Moreover, Mr. Howery had practical experience with 

stress afflicted animals. He knew that confinement, heat, 

noise, dust and/or vibrations can produce stress in his pigs. 

He testified that stress afflicted hogs are prone to ulcers, 

hampered growth and even sudden death. He recognized that 

confinement alone may produce stress but that thus far he had 

managed to maintain his pigs per litter ratio, referring to 

pigs weaned, above the national average, with minimal loss 

between weaning and marketing. 

Mr. Howery's testimony was reinforced by Dr. Earl Pruyn, 

a Missoula veterinarian who was knowledgeable about pig 

containment units and porcine stress syndrome. 
Dr. Pruyn, stated that, in his opinion, the proximity of 

the frontage road to the Howery pig buildings would "either 

rapidly or slowly" make the Howery operation uneconomical. 

Dr. Pruyn had visited the Howery property, concluded the 

Howerys ran an above average, exceptionally clean operation, 

and was familiar with the frontage road construction 

proposal. He based his opinion on several facts: (1) the 

pigs raised by Howerys were very susceptible to porcine 

stress syndrome; (2) the frontage road would be located 

relatively close to the gestation and farrowing portion of 

the building, which from his experience should be protected 

from highways or high-use secondary roads; (3) that road such 

as the State proposed for construction produce noise, 

vibration and dust; and (4) that the road would reduce the 

wet areas and grasslands surrounding the confinement 

facility, thereby heating the air transmitted into the 

facility via its ventilation system and making the buildings 

more susceptible to vibrations produced by increased traffic. 

The District Court committed no error in permitting Mr. 

Howery to testify as to reduction in value which would result 

from the new road. Where a landowner-witness is informed as 

to the facts regarding the construction and use of a public 

work, and has an acquired and/or applied understanding of the 

technical and practical aspects of its impact on his or her 

property and its income producing capacity, the 

landowner-witness is competent to estimate before and after 

value as to that particular use, or the cause of damage to 

his remaining property. 

The Department of Highways next contends that the jury's 

verdict for depreciation in value to remainder was excessive 

and supported only by speculative and conjectural evidence. 

A two prong argument is asserted: (1) Mr. Howery failed to 
prove causation; and (2) Mr. Howery's opinion on depreciation 

in value was not based upon market data or upon mental 

impressions held by "respective purchasers" in the swine 

industry. 

Our discussion of issue one disposes of the department's 

first assertion. As to the second, the Wyoming decision 

relied upon by the Department, Coronado Oil Co. v. Grieves 

(Wyo. 1982), 642 P.2d 423, is factually distinguishable. 

There, the analysis of the testimony disclosed that the 

landowners and their appraiser did not employ a standard of 

fair market value but rather opined the value of the 

remainder to them personally. 642 P.2d at 434-35. Clearly, 

this wa unacceptable. 

Here, Mr. Howery testified that he understood the 

concept of market value, and lacking comparable sales to 

derive market value, employed an acceptable alternative 

approach to ascertain depreciation in market value after the 

taking. Furthermore, Mr. Howery's testimony was consonant 

with that of Mr. Roy Rodenburger, a Missoula appraiser 

experienced in appraisals of rural properties. Mr. 

Rodenburger stated that after the taking the Howery's hog 

operation had only a residual value of $12,000.00, 

representing the salvage value of the facilities. In Mr. 

Rodenburger's opinion, the total depreciation in market value 

of the hog facilities caused by the taking amounted to 

$235,795.00. He stated his opinion was based on his 

inspection of the Howery facilities, his past experience in 

appraising other hog operations, his discussions with Mr. 

Howery and Dr. Pruyn, and reproduction cost figures supplied 

to him by the Dillon Livestock Market Company. Thus, we 

conclude the jury's verdict was not based on speculative or 
conjectural evidence. Nor was it excessive in light of the 

evidence presented. 

We have long followed the rule in eminent domain 

proceedings that the jury findings will not be disturbed on 

appeal unless they are so obviously and palpably out of 

proportion to the injury done to be in excess of just 

compensation. State Dept. of Highways v. Schumacher (1979) 

180 Mont. 329, 590 P.2d 1110, and cases cited therein. 

The record before us belies any such obvious and 

palpable error as to the jury valuation of the Howery loss. 

Finally the Department of Highways contends that the 

District Court erred in refusing its proposed jury 

instructions numbered 20 and 22. Proposed instruction No. 20 

cautioned the jury that the Howerys could not be awarded any 

amount for depreciation in value to the remainder caused by 

the construction of the interstate. Proposed instruction No. 

22 explained the manner in which state highways or county 

roads are legally abandoned. This instruction went to the 

Department's argument that two forks from the Jackson Road, 

were public roads, not private access routes, and that the 

proposed frontage road would actually reduce traffic on them. 

The District Court committed no error in refusing to 

give the proposed instructions. Instruction 20 was a 

negative instruction. This Court has discouraged such 

instructions to avoid the introduction of non-issues in a 

case. See Brown v. North American Mfg. (1978), 176 Mont. 98, 

576 P.2d 711. 

Instruction 22 was within the discretion of the trial 

court to give. It does not appear the Department was 

prejudiced by its refusal. Absent a showing of prejudice, 

the trial court's discretion will not be disturbed. 
Affirmed . 

We concur: 

Mr. Justice Daniel J. Shea will file a special concurrence 

later.