No. 12745 INTHE 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. Sullivanand 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, 1975 Decided :

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### Mr. Justice John Conway Harrison delivered the Opinion of the Court

# . This 

### isan appeal by the StateHighway Commission from 

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

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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 interstatehighway crosses through the ranch fromnorth 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 threewitnesses testified as tojust 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 theuse 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 tocure". 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 iswhether the district court committed reversible error necessitating a new trialby placing the sum of 

### $48,800as the lowest testimony of the Statewhen one of the State's appraisers, Russell Gasser, testified to a figure of $38,200. The State asserts InstructionNo. 21 is erroneous because it removed Russell ~asser'stestimony from the jury's consideration and cites in support 75Am,Jur2d,Trial, § 

### 655,which states: "A party is entitled to have the jury consider all the evi.denceproperly before them in arriving at their verdict, and an instruction is erroneous if it ignores any material, conflicting,or qualifying evidencewhich the jury arebound to consider in forming their verdict, or if itwithdraws from their consideration any evidence, howeverweak, tending to establish material facts.

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### In determiningwhy the trial court did not use the lowest figure testified to we set forth the sequence of events that transpiredwhile the instructionswere 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 InstructionD21with 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 testimonyby one of the state's ownwitnesses, 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 lowestwitnesswhen it has testimonyby another witness for a higher amount of $10,600.00 or more. "THE COURT: 

### Obj 

### ection sustained. ''MR. SULLIVAN: Couldwebe heard on it for just a minute. 

### I think the lowest testimony of just compensationby the Defendants if (sic) approximately One Hundred Twenty-One. 

### "MR. SMITH: One Hundred Twenty-onewhat? "MR. SULLIVAN: Thousand. Somebodyhad $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 togive 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 figurenow being offered and therefore since this isjust compensation as asked forby the Defendant, the figure given as the high one should not exceed the lowest amount testified toby the Defendants. "THE COURT: Overruled.II In trying tounderstand why the trialcourt did not insert the lowest figure testified to itwould 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 tohave been willing to lethis lowest figure go by the board so as to strike down the landowners' highest figure. If thiswere his tactic, it did not work or it so confused the trialcourt that the Gasser testimony was overlooked. It was the state's duty to
see that the trialcourt 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 settlingof instructions there 

### isno merit to their position. Rule 51, M.R.Civ.P., concerning instructions to thejury, states inpart: 

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# ** Objections made shall specify and statethe particulargrounds on which the instruction is objected toand it shallnot be sufficient in stating the ground of such objection to state generally the instruction does not statethe law or 

### isagainst the law, but such ground of objection shall specify particularly wherein the instruction isinsufficient or does not state the law, orwhat particular clause therein is objected to. 

# ** *"* The purpose of Rule 51, M.R.Civ.P., is togive the district court judge an opportunity tocorrect his own errors. This Court has repeatedly held that objections to instructions cannot be heard
on appeal unless they were initiallyraised in the trialcourt.Seder v. Kiewit sons' Co., 156Mont. 322, 479 P.2d 448; Salvail
v. Great Northern Railway Co., 156 Mont. 12, 473 P.2d 549; Cross
v. Trethe-, 155Mont. 337, 471 P.2d 538. Here, on appeal, the Stateargues the instructionwas
erroneousbecause it prevented the State from having thejury 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 objectionswas clearlyraised in the trial court. Accordingly,
we decline toreverse the district court on an erroneous instruction when the objection to that instructionwas not distinctly stated. The judgment of the districtcourt 

### isaffirmed.



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