No. 12562 

IN THE SUPRENE COURT OF THE STATE OF MONTANA 

1973 

STATE OF MONTANA, Acting by and Through 

the State Fish and Game Commission and 

Members thereof, 

Petitioner, 

DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT 

OF THE STATE OF MONTANA IN AND FOR THE COUNTY 

OF MADISON and HON. FRANK E. BLAIR, Judge thereof, 

Respondents. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Petitioner: 

Clayton Herron argued, Helena, Montana 

For Respondents: 

Corette, Smith and Dean, Butte, Montana 

Kendrick Smith argued, Butte, Montana 

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Submitted: September 26, 1973 

Decided : DEC 12 1973 

Filed : WC 12 1973 - ** 
Honorable LeRoy L. McKinnon, District Judge, sitting in place of 

Mr. Justice John Conway Harrison, delivered the Opinion of the 

Court. 

This is an original proceeding wherein the State Fish 

and Game Commission, plaintiff in district court, brought this 

petition for an appropriate writ to control the actions of the 

district court. 

The petitioner is seeking to condemn certain property 

known as "Beaverhead Rock" for use as a state historical site. 

In 'state of Montana, acting by and through the State Fish and 

Game Commission and the members thereof, Plaintiff, vs. Norman 

G. Ashcraft and Loretta Gay Ashcraft, Husband and Wife, as joint 

tenants; Harvey Robson, a single man; Vigilante Electric Cooperative Inc., a Montana corporation; and United States of America, 

acting by and through the Administrator of the Farmers Home Administration, Defendants; Cause No. 6242, now pending in the 

district court of the fifth judicial district of the State of 

Montana in Madison County, after the complaint and the answer had 

been filed, and while discovery was underway, the defendants 

petitioned the district court for an order allowing the use of 

certain specified sales as comparable sales in any valid appraisal 

by an expert. This motion was supported by an affidavit sworn 

to by one of defendants' attorneys. The court, after argument 

of counsel, granted the motion, entered its order and the State 

now seeks this writ. It should be noted that the order was 

entered July 7 and this action taken on July 24, 1973. In the 

interim the defendants have employed an expert who has prepared 

an appraisal based on the usability of the sales as comparable 

sales. 

An issue is raised as to whether this Court should accept 

jurisdiction. In Union B. & T. Co. v. State Bk. of Townsend, 

103 Mont. 260, 270, 62 P.2d 677, this Court said: 
"The district court has sufficient control 

over its proceedings to so regulate them 

that the rights of parties may be settled 

once and for all and as expeditiously as 

possible. And in its supervisory capacity, 

this court has the right to direct the district court to so proceed as to accomplish 

that purpose. In Zunchich v. Security 

Building & Loan Assn., 85 Mont. 341, 278 P. 

1011, this court declared that the purpose 

of section 9087, Revised Codes, was to 

expedite litigation and afford protection to 

both persons and property involved in 

litigation." 

Here, the expeditious settling of rights would require 

correct procedure, and to that end this Court will accept 

jurisdiction. 

The order complained of appears to be somewhat ambiguous 

in that it receives different interpretations by the parties 

hereto. It states in effect that certain designated sales may 

be used as comparable sales in the trial of this matter in any 

valid appraisal by an expert. The petitioner construes this to 

mean that the designated sales may be used in evidence of value 

without first laying a foundation to show admissibility. The 

respondent court argues that it means they may be used if a proper 

foundation is laid. 

The rule is stated in State Highway Comm'n v. Greenfield, 

145 Mont. 164, 169, 399 P.2d 989: 

" * * * The party calling such expert witness 

must also satisfy the trial court that the 

sales were recent, in the vicinity,'and involving&nd comparable to the land in issue." 

These conditions, as applicable to the facts, must be 

met before it can be determined that the expert witness may use 

the designated sales as comparable sales to establish value. A 

determination that evidence of any certain sale of property is 

admissible in this case to help determine value is premature prior 

to trial. At the time of trial counsel may present his expert 

witness and attempt to lay a sufficient foundation for the evidence 
he proposes. The trial judge shall then rule on the question 

of admissiiil.ity, 

The value to be determined is the fair market value. If 

historic significance in fact enhances the fair market value, 

the landowner, of course, is entitled to that enhanced value. 

in~a /oed 

The fact that other sales -property having historic 

significance is not sufficient foundation, standing alone, to 

admit such sales as comparable to the property here involved. 

Objection is made also that the application was not 

timely filed subsequent to the district court order dated July 

7, 1973. The application for writ bears a filing date of July 

24, 1973. We find no unreasonable delay. 

The district court is instructed to proceed in accord 

with the views expressed herein. 

Judge, sitting in place of Mr. 

Justice John C. Harrison. 

ief' Justice - /\ 

Justices U