No. 12745 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA, ACTING BY AND 

THROUGH THE STATE HIGHWAY COMMISSION 

OF THE STATE OF MONTANA, 

Plaintiff and Appellant, 

MARY A. SMITH BELDON, DONALD J. and 

GERTRUDE SMITH, husband and wife, 

JOAN E. SMITH PENDERGAST, and the 

FEDERAL LAND BANK OF SPOKANE, 

Defendants and Respondents. 

Appeal from: District Court of the Second Judicial District, 

Honorable John B. McClernan, Judge presiding. 

Counsel of Record : 

For Appellant : 

Daniel J. Sullivan and James Driscoll, Helena, Montana 

James Driscoll argued, Helena, Montana 

For Respondent : 

Corette, Smith and Dean, Butte, Montana 

Kendrick Smith argued, Butte, Montana 

Submitted : January 13, 19 75 

Decided : FEB -- 1 9 1cJ7S , 

Filed : - ;?I@ 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court . 

This is an appeal by the State Highway Commission from a 

jury verdict rendered in a condemnation action. The taking consisted of 61.4 acres for the construction of a highway and 7.7 

acres for construction permits and easements. The condemned land 

is included within a ranch located a short distance east of the 

community of Melrose, Montana. The new interstate highway crosses 

through the ranch from north to south for a distance of approximately one mile and roughly bisects the ranch. The jury awarded 

compensation in the amount of $97,000 which included $30,000 for 

the value of the land taken and $67,000 as depreciation to the 

remainder. 

At trial three witnesses testified as to just compensation 

for the landowners and two testified on behalf of the State. The 

valuations placed upon the condemned land and the damages to the 

remainder can best be summarized by the use of this chart: 

LANDOWNER'S WITNESSES 

Value of Land Taken Depreciation Total 

1. DonaldSmith $55,575 

2. Ralph Potts 52,650 

3. Joe Buyan 52,650 

STATE'S WITNESSES 

1. Russell Gasser 18,000 

2. Robert Shedd 19,700 

*Includes an additional amount of $18,800 for "cost to cure". 

On appeal the only error alleged by the State concerns Instruction No. 21 given by the district court. This instruction 

reads : 

I' You are instructed that you may not award compensation in excess of the amount of $137,790.00 which 

is the highest appraisal on behalf of the defendants; 

nor may your verdict be less than the sum of $48,800.00, 

the amount of the lowest testimony offered by the 

State of Montana in this matter. 
< he burden of proof is upon the defendants to prove 

they are entitled to an amount greater than $48,800.00, 

which is the lowest testimony offered by the State in 

this matter. 11 

The issue is whether the district court committed reversible 

error necessitating a new trial by placing the sum of $48,800 as 

the lowest testimony of the State when one of the State's appraisers, 

Russell Gasser, testified to a figure of $38,200. 

The State asserts Instruction No. 21 is erroneous because 

it removed Russell ~asser's testimony from the jury's consideration 

and cites in support 75 Am,Jur 2d, Trial, § 655, which states: 

"A party is entitled to have the jury consider all 

the evi.dence properly before them in arriving at 

their verdict, and an instruction is erroneous if it 

ignores any material, conflicting, or qualifying 

evidence which the jury are bound to consider in forming 

their verdict, or if it withdraws from their consideration any evidence, however weak, tending to establish 

material facts. * * *I1. 

In determining why the trial court did not use the lowest 

figure testified to we set forth the sequence of events that 

transpired while the instructions were being settled: 

"THE COURT: The Court proposes to give Instruction No. 

21 tendered by the landowners. 

"MR. SMITH: May the record show that the landowners 

submitted Instruction D21 with the blank spaces left 

blank and has inserted as its offer of the instruction 

only the higher amount of $137,790.00. The specific 

objection to which the landowner is now objecting is 

the insertion of the sum of $38,200.00 where there is 

testimony by one of the state's own witnesses, Mr. Rohert 

Shedd, that just compensation should be in the higher 

amount of $48,800.00 and that it is not fair, proper, 

legal, equitable or just for the State to seek to get 

the lowest amount of its lowest witness when it has 

testimony by another witness for a higher amount of $10,600.00 

or more. 

"THE COURT : Ob j ec tion sustained. 

''MR. SULLIVAN: Could we be heard on it for just a 

minute. I think the lowest testimony of just compensation by the Defendants if (sic) approximately One 

Hundred Twenty-One. 

"MR. SMITH: One Hundred Twenty-one what? 

"MR. SULLIVAN: Thousand. Somebody had $121,000.00. 

"MR. SMITH: That is correct. 

"MR. SULLIVAN: If that is the case, the same thing would 

work that way, that this is some $16,000.00 less. 
"THE COURT: What did you say, what is the figure? 

"MR, SMITH: $48,800.00. 

"THE COURT: The Court now proposes to give Instruction No. 21 

as amended, 

"MR. SULLIVAN: We would object to this on the grounds and for 

the reason that a witness for the Defendant has testified 

that the highest just compensation is $121,000.00. This is 

a rounded figure. That this obviously is approximately 

$16,000.00 less than the high figure now being offered and 

therefore since this is just compensation as asked for by 

the Defendant, the figure given as the high one should not 

exceed the lowest amount testified to by the Defendants. 

"THE COURT: Overruled. I I 

In trying to understand why the trial court did not insert 

the lowest figure testified to it would appear that as a trial 

tactic, counsel for the State tried to get the middle figure of 

$121,075 into Instruction No. 21, rather than the $137,790 figure 

and in so doing to lower the maximum by some $16,000. He appears 

to have been willing to let his lowest figure go by the board so as 

to strike down the landowners' highest figure. If this were his 

tactic, it did not work or it so confused the trial court that 

the Gasser testimony was overlooked. It was the state's duty to 

see that the trial court did not miss the proper figures. 

The landowners argue the State is precluded from contending 

the court's view was erroneous. In view of the apparent confusion 

the time of settling of instructions there is no merit to their 

position. Rule 51, M.R.Civ.P., concerning instructions to the jury, 

states in part: 

"* * * Objections made shall specify and state the 

particular grounds on which the instruction is objected 

to and it shall not be sufficient in stating the 

ground of such objection to state generally the instruction does not state the law or is against the law, but 

such ground of objection shall specify particularly 

wherein the instruction is insufficient or does not state 

the law, or what particular clause therein is objected 

to. * * *"* 

The purpose of Rule 51, M.R.Civ.P., is to give the district 

court judge an opportunity to correct his own errors. This Court 

has repeatedly held that objections to instructions cannot be heard 

on appeal unless they were initially raised in the trial court. 
Seder v. Kiewit sons' Co., 156 Mont. 322, 479 P.2d 448; Salvail 

v. Great Northern Railway Co., 156 Mont. 12, 473 P.2d 549; Cross 

v. Trethe-, 155 Mont. 337, 471 P.2d 538. 

Here, on appeal, the State argues the instruction was 

erroneous because it prevented the State from having the jury consider the testimony of one of its expert witnesses and it prevented 

the State from presenting its theory of the case. However, neither 

of these objections was clearly raised in the trial court. Accordingly, 

we decline to reverse the district court on an erroneous instruction 

when the objection to that instruction was not distinctly stated. 

The judgment of the district court is affirmed. 

/ / Chief Justice 

/ Justices. I