PJo. 85-270 IN THE SUPREME COURT OF THE STATF OFNONTRWA 1985

STATE OF MONTAPJA, actingby and through the

### DCPAR?'EFT OF FJGHFiAYG of the State of bTontana, Flaintiff and Responden::,

3efendants and Appellants.

APPEAL FPCPG: PkEi:~lctCourt of theThirteenthJudicialDistrict, Tn and 

### for the County of Yellowstone, The Honorable CharlesLuedke, Zuclge presiding.
COUNSEL Oh' H.ECGRC:
For Appellant; Petcscor, Fchcfield & Leckie; K. D. Peterson, Billings, Montana

Fcr Pesporldcnt:

Pfl. Gene FcLatchv, Dept. of B~-r~hwciys, Helena, Montana

- - --. -.- Submitted on Briefs: Sept. 19, 1985 Jjecided: December 30, 1985

- 

### -- -- -- ---- ClerkMr. Chief Justice J. A. Turnagedelivered the Opinion of the Court.Adeline Donnes appeals from a judgmentof the District Court, Thirteenth Judicial District, Yellowstone County, awarding her $700 as just compensation for the temporary taking of a haul road onher ranch east of Billings. A.ppellant alleges that the District Court erred in failing to award.her all of the damages she suffered from the haul road and gravel removal operations of the State Highway Department. The State does not appeal a.nyportion of the award.Certain findings by the District Court are fatal to appellant's position and there is nothing in this appeal to counter those findings. We affirm the award of the District Court.The following facts are not indispute. Donnes owns a ranch between Pompey's Pillar and Custer, Montana. In September 1973, when the condemnation action was filed, her ranch consisted of about 2,100 acres of deeded land and 200 acres of land leased from the State of Montana for agricultural purposes. One provision of this lease reserved to the State the right to enter the land and extract gravel. The lease also allowed appellant to subleasehut only on the same terms and conditionsasher lease. Appellant paid the State $750 per year (or $3.75 per acre per year) on the lease. The other defendant in the condemnation action was Joseph Ruff. He leased the deeded acreage of the ranch for
an annual rental of $13,000. As part of the lease terms, Ruff ran some cattle owned by Donnes along with his own stock. As to the State lease land, there was no actual sublea.sehut only anunderstanding that since JosephRuff

### wasrunning some 

### of defendant's cattle for her, he was free to use the State lease acreage alongwith the fee land owned by defendant. Ruffpaid the annualrentalof $13,000 throughout the entireperiod relevant to this action. Ruff took no part in the condemnationproceedings and claimed no damages. The Department of State Lands granted the Highway Department the right to extract gravel from forty acres of the state lease forhighway construction. Inorder to access the gravel pit area, the Highway Department needed a temporary haul road. across appellant's fee property and began condemnation proceed.ings for the .54 acres of land required for the road. TheDistrictCourt issued an orderputting the highway inpossession inNovember 1973. The caseproceeded throughdiscovery,negotiations,and value commission hearing afterwhich the commissioners determined appellantwas entitled to $1,600 compensation. Donnes appealed to the District Court, and the matter was tried to the court without a jury. TheDistrictCourtdetermined that Donnes was entitled to $700 as just compensation for the taking. That award includes $100 for the three-year easement on the haul road and $600 for the loss ofuse to appellantof forty acres of the state lease land for fouryears. On this appeal, Donnes claims that the forty acres of State lease land was worth $6.50 per acre per year rather than the $3.75 per acre per year awarded by the District Court. She also claims that the forty acreswas lost to her
use for five years rather than the four years found by the District Court. With respect to the remaining 160 acres of State lease land, appellant claims that land was rendered unusable for a period of three years because the unfenced haul road left

### a forty-footopening to the interstate throughwhich cattle would run. In addition to the State lease lands, appellant claims 120 acres of her fee land was likewise rendered useless for ranchingby the unfenced haul road. Furthermore, appellant alleges that dust from the gravel pit operations covered forage rendering another eighty acres of her land useless forgrazing,and that the loss of a11 of the above land led to the loss of a 120-acre alfalfa field because of overgrazing. Finally,appellant claims that she is entitled to $500 in this action for the cost of replacing a bridge that was destroyed by the Department of Highway's contractorprior to constructionof thehaul road. Before dealing with the issues created by appellant's contentions,we first note that the District Court was more than fair to the appellant in considering her arguments. Appellant mademore extensive claims against the State inher trial and post-trial submittals than those in the pre-trial order. Even so, the District Court considered the inflated claims in making its determination to insure fairness to Donnes. The State has chosen not to appeal the award, sowe will not consider the propriety of these post-trial claim alterationsby appellant. One conclusion by the District Court was particularly damaging to appellant's case. The DistrictCourt noted that in condemnation cases, compensation only accrues to the one suffering loss or damage. The District Court then held, and
we agree, that when land is leased and any loss or damage from a taking is to a temporary ability to use the land, it is the lesseewho is entitled to any compensation. Here,the lessee, Ruff, paid the entire rental of $13,000per year to Donnes throughout the period for which Donnes is claiming damages. Therefore,any damages for temporary loss of use ofthe land Ruff leased fromDonnes would accrue to Ruff rather than Donnes. In light of this conclusion, we affirm the District Court's denial of Donnesf claim as to the loss of
use of the 120 acresbecause thehaul roadwas not fenced and the eighty acresbecause ofdust. As noted by the District Court,matters are less clear with respect to the 160acres of State lease land that Donnes also claimswas lost to usebecause of the unfenced haul road and gravelpit operations. Donnes claims that shewas forced to sel-1some of the cattle shehad in Ruff's care because of insufficient forage. However, the District Court was not presented with substantial evidence linking Donnes' cattle sales to the loss of use of this particular 160-acre tract. Nor is there evidence in the record sufficient to establish the extent of Donnes' damages caused by the loss of use of the 160 acres. Indeed, Donneshas not even established that she lost the use of this land. The la-ndownerhas the burden in eminent domain proceedings to prove entitlement to just compensation in excess of that offered by the condemnor. State Highway Commission v. Marsh (19741,527 P.2d 573, 575, 165 Mont. 198. The District Court correctly found that Donnes has not met her burden with respect to the 160-acre tract.We will next consider the 120 acres of alfalfa that appellant contends was destroyed by overgrazing because the gravel pit activity diminished the availability of other grazing acreage to feed the cattle. This acreagewas under lease to Ruff and was under his management. \iJeagree with the District Court that overgrazing of alfalfa to the point of destruction would be a tort or a breach of contract as between Donnes and Ruff. Any responsibility of the Statewould be to the lessee, Ruff,who has not claimed any damages. Appellant does not have a compensable claim in eminent domain forany overgrazing of the alfalfa field. As to appellant's claim that the forty-acre gra-velpit
area was lost for fiveyears rather than fouryears as found by the District Court, we must affirm the District Court. The record actually indicates that the areawas lost to other uses for aperiod of only threeyears. The recontouring and seeding of the excavated area was successful within three years of the time excavation began. Since the State has chosen not to appeal the award of fouryears rental,wewill not reduce appellant's compensation. Also with regard to the forty-acrepit area,appellant claims that she should have been awarded $6.50 per acre per year rather than the $3.75 per acre per year the District Court awarded her. However, the rent she paid to the State under the terms of her lease with the State for the land was $3.75 per acre per year. Section 77-6-208, MCA, provides that any sublease of State leased lands must not be upon terms less advantageousto the sublessee than the terms given by the State. The lease involved here contains a provision that echoes the statute. Since it was Ruff that actually utilized the land, the only loss possibly suffered by Donnes
was what she might have received by subleasing theproperty. Because 

### of the statute, she could not have suhl-easedthe property for more than $3.75 per acre per year. The State has not appealed the issue of whether or not appellant was entitled to any compensation for this land in a condemnation proceeding. Therefore,we will uphold the District Court's determination of just compensation for the gravel pit area.Finally, we get to the $500 claimed by appellant as damages for replacementof thebridge damaged from excessive
use by the highway construction contractors. Prior to the taking of the haul road, contractors accessed the gravel pit
area by an alternate route which included the bridge. The construction of the haul road ended the need for the contractors to use the bridge route. As such, the taking of the haul road cannot be blamed for damages to the bridge. We agree with Judge Luedke that this eminent domain action for the haul road is not the vehicle by which appel-lantcan recover damages for thebridge. We affirm the District Court's award of $700 to appellant.

We concur:

JusticesMr. Justicejohn C. Sheehy, dissenting:
Again thiswoman has heen handed a gross injustice from the court systemof Montana. See Statev. Donnes (1980), 187 Kont. 338, 609 P.2d 1213. This woman has been deprived of proper darr,ages in the
case atbar because the courts have assumed that the state lanc?swhich she leased were subleased toJoseph Ruff. Yet thereisno proof of any such sublease. What therecord does shew isthat she leasedher deeded lands toJoseph Ruff for
a sum of S1.3,OCC.GO per year, and that he was permitted to
use the state lanes. Permissive use does 

### not amount to a. sublease. The amount of the award in this case is grossly inadequate. I would reverse and remand for a new trial.