PJo. 85-270 

IN THE SUPREME COURT OF THE STATF OF NONTRWA 

1985 

STATE OF MONTAPJA, acting by and 

through the DCPAR?'EFT OF FJGHFiAYG 

of the State of bTontana, 

Flaintif f and Responden::, 

3efendants and Appellants. 

APPEAL FPCPG: PkEi:~lct Court of the Thirteenth Judicial District, 

Tn and for the County of Yellowstone, 

The Honorable Charles Luedke, 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 

- -- -- -- ---- Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Adeline Donnes appeals from a judgment of the District 

Court, Thirteenth Judicial District, Yellowstone County, 

awarding her $700 as just compensation for the temporary 

taking of a haul road on her 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.ny portion 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 in dispute. 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 sublease hut only on the same 

terms and conditions as her 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.se hut only an understanding that since Joseph Ruff was 
running some of defendant's cattle for her, he was free to 

use the State lease acreage along with the fee land owned by 

defendant. Ruff paid the annual rental of $13,000 throughout 

the entire period relevant to this action. Ruff took no part 

in the condemnation proceedings 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 for highway construction. In order 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. The District Court issued an order putting the 

highway in possession in November 1973. 

The case proceeded through discovery, negotiations, and 

value commission hearing after which the commissioners determined appellant was entitled to $1,600 compensation. Donnes 

appealed to the District Court, and the matter was tried to 

the court without a jury. The District Court determined 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 of use to appellant of 

forty acres of the state lease land for four years. 

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 acres was 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-foot opening to the interstate through 
which cattle would run. In addition to the State lease 

lands, appellant claims 120 acres of her fee land was likewise rendered useless for ranching by the unfenced haul road. 

Furthermore, appellant alleges that dust from the gravel pit 

operations covered forage rendering another eighty acres of 

her land useless for grazing, 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 

contractor prior to construction of the haul 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 made more extensive claims against the State in her 

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, so we 

will not consider the propriety of these post-trial claim 

alterations by appellant. 

One conclusion by the District Court was particularly 

damaging to appellant's case. The District Court 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 lessee who is entitled to any compensation. Here, the 

lessee, Ruff, paid the entire rental of $13,000 per year to 

Donnes throughout the period for which Donnes is claiming 

damages. Therefore, any damages for temporary loss of use of 
the land Ruff leased from Donnes 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 acres because the haul road was not fenced and 

the eighty acres because of dust. 

As noted by the District Court, matters are less clear 

with respect to the 160 acres of State lease land that Donnes 

also claims was lost to use because of the unfenced haul road 

and gravel pit operations. Donnes claims that she was forced 

to sel-1 some of the cattle she had 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, Donnes has not even established that 

she lost the use of this land. The la-ndowner has 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 acreage was under 

lease to Ruff and was under his management. \iJe agree 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 State 
would be to the lessee, Ruff, who has not claimed any damages. Appellant does not have a compensable claim in eminent 

domain for any overgrazing of the alfalfa field. 

As to appellant's claim that the forty-acre gra-vel pit 

area was lost for five years rather than four years as found 

by the District Court, we must affirm the District Court. 

The record actually indicates that the area was lost to other 

uses for a period of only three years. 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 four years rental, we will 

not reduce appellant's compensation. 

Also with regard to the forty-acre pit 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 advantageous to 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 the property. 

Because of the statute, she could not have suhl-eased the 

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 replacement of the bridge 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-lant can 

recover damages for the bridge. 

We affirm the District Court's award of $700 to 

appellant. 

We concur: 

Justices 
Mr. Justice john C. Sheehy, dissenting: 

Again this woman has heen handed a gross injustice from 

the court system of Montana. See State v. Donnes (1980), 187 

Kont. 338, 609 P.2d 1213. 

This woman has been deprived of proper darr,ages in the 

case at bar because the courts have assumed that the state 

lanc?s which she leased were subleased to Joseph Ruff. Yet 

there is no proof of any such sublease. What the record does 

shew is that she leased her deeded lands to Joseph 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.