No. 12562 INTHE SUPRENE COURT OF THE STATE OF MONTANA 1973

STATE OF MONTANA, Acting by and Through the StateFish and Game Commission and Members thereof, Petitioner,

DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT OF THE STATE OF MONTANA INAND 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

-- Submitted: September 26, 1973 Decided:

## DEC

## 121973 Filed:

# WC121973 

# -**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 'stateof Montana, acting by and through the State Fish and Game Commission and themembers thereof, Plaintiff,vs. Norman G. Ashcraft and Loretta GayAshcraft, Husband and Wife, as joint tenants;Harvey Robson, a singleman; Vigilante Electric Cooperative Inc., a Montana corporation; and United States of America, acting by and through theAdministrator 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 inMadison 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 themotion, 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 expertwho 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, 62P.2d 677,this Court said:"The district court has sufficientcontrol over its proceedings to so regulate them that the rights of partiesmay 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 Zunchichv. Security Building & Loan Assn., 85Mont. 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 rightswould require correct procedure, and to that end this Court will accept jurisdiction. The order complained of appears to be somewhat ambiguous in that it receivesdifferent interpretationsby the parties hereto. It states in effect that certaindesignated salesmay be used as comparable sales in the trial of this matter in any valid appraisalby an expert. The petitioner construes this to mean that the designated salesmay be used in evidence of value without first laying a foundation to showadmissibility. The respondent court argues that itmeans they may be used if a proper foundation is laid. The rule is stated in State Highway Comm'nv. Greenfield, 145Mont. 164, 169, 399 P.2d 989: 

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## * * * The party calling such expertwitness must also satisfy the trial court that the saleswere 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 thedesignated sales as comparable sales to establishvalue. 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 counselmay present his expert witness and attempt to lay a sufficient foundation for the evidencehe proposes. The trial judge shall then rule on the question of admissiiil.ity, Thevalue to be determined is the fairmarket value. If historic significance in fact enhances the fairmarket value, the landowner, of course, is entitled to that enhanced value. in~a /oed The fact that other sales -property having historic significance isnot sufficient foundation,standing alone, to admit such sales as comparable to the property here involved. Objection ismade 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 inplace of Mr. Justice John C. Harrison.

ief'Justice - /\

Justices 

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