No. 12633 

### IN

### THE SUPREME COURT OF THE STATE OF 

### MONTANA 1974

THE STATE OF MONTANA, ACTING BY 

### AND THROUGH THE STATE 

### HIGHWAY COMMISSION OF 

### THE STATE OF MONTANA, Plaintiff and Appellant,

JOHN R. COOPER and 

### DONNA C. COOPER, husband and wife, 

### THE FEDERAL 

### LAND BANK OF SPOKANE, and CLYDE 

### J

# .SULLIVAN and 

### MARY E. SULLIVAN, husband and wife, Defendants and Respondents.

Appeal from: District Court of the SixthJudicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellant

### : K. M. Bridenstine argued, Helena, Montana Harry Alley a~peared, Helena, Montana For Respondents

### : Corette, Smith and Dean, Butte, Montana Kendrick Smith argued, Butte, Montana Dolphy 0. Pohlman, 

### Jr. argued, Butte, Montana

Submitted: March 20, 1974 Decided: 

## A~R 

## 18

## 1974 Filed: 

## 181974Mr. JusticeJohn Conway Harrison delivered the Opinion of the Court. This 

### isan appeal by the StateHighway Commission from a judgment rendered pursuant toa jury verdict inan action in eminent domain brought inthedistrictcourt of Sweet Grass County, Judge Nat Allen presiding. The State instituted the action to condemn 12.6 acres of respondents' land for construction of a county secondary road of .9 miles in length. The judgment awarded the sum of $13,000 for the land acquired plus $27,050 for depreciationtothe remainder and isappealed following the trialcourt's denial of a motion for a new trial. The acreage taken by the Statefrom respondents consisted of mixed grazing and hay land and cabin sites along the river. The road in question isknown as the Boulder River McLeon Road,

a county road, and theproject was to

### tie in two segments of the county road. The acquisition tract is a stripof land some 170' inwidth and .9 

### milesin length. Part of the construction involved irrigation lateralsand canalswith culverts and a bridge over the west fork Boulder River. The respondent, Sullivan, owned the land involved using it inconnection with several thousand other acres as part of his cattlebusiness. He has been inthe cattlebusiness inMontana for 40 years, operating severalranches prior toacquiring his present ranch for raising purebred cattlein 1968. The animal unit capacity of theranch prior tothe State's acquisition was approximately 200 head. Sullivan testified that the loss of the 12.6

acres of land when figured on a basis of loss of hay alone in annual units would come toapproximately $22,680, plus the river frontage lotdepreciation lossof some $31,680. Inpreparing for the trialthe State elected togo with just one appraiser, James Brown, who had done their appraisal work inthe Sweet Grass area. On Friday, with the trial set forMonday,

### the Statewas notified by Brown's doctor that Brown was suffering from a serious eye disease (glaucoma) and would not be able to testify. Suitable affidavitsand motions were prepared and filed and on Monday at the trial the State requested a continuance until another appraisal could be made. This request was refused but an agreementwas made between counsel of both sides that ~ruastine, appellant's counsel,could read Brown's testimony to the jury and could explain said testimony by referring to a list of "comparative sales",maps and photographs all prepared or taken by Brown. In addition the State was allowed to update Brown's figuresand offer more compensation than was in his original report. In addition two witnesses employed by the State testified, one, Dennis Williams, division construction engineer, and James T. Sullivan, a former division engineer. Williams was called as an adverse witness by respondents and he testified as the State's surrebuttal witness.Three value witnesses testified in the case, two for respondent and one for the State. Clyde Sullivan, the owner and respondent, testified that the total just compensation was $129,320; Norm Starr gave the figure of $127,316; and Brown's figurewas $15,101.83. The jury verdict was for the landowners at $40,050. The breakdown of that verdict was $13,000 for the 12.6 acres taken and $27,050 for depreciation. At the close of the case for the State counsel asked the court to arrange for a jury view of the land to be taken and after questioning the jury, most of whom knew the land in question, the court denied the State's request. Four issues are presented for our consideration:

(1) The court abused its discretion by refusing plaintiff's motion for continuance for the reasonplaintiff's only expertvalue witness could not attend the trial 

### for health reasons, and that this -3-prevented plaintiff from having a fairtrialof themerits of thiscause; (2) The verdict 

### istheresult of passion and prejudice for defendants and against plaintiff, brought about by absence of a value witness on thepart of plaintiff; (3) The court improperly denied plaintiff's motion for view of thepremises inthe absence of a value witness on the part of plaintiff; and (4) The court abused its discretion inrefusing togrant

a new trialtoplaintiff. We find no merit toissue one. The controlling statute, section 93-4910, 

### R.C.M. 1947, governs the postponement or the continuation of a trial. "Motion topostpone a trialforabsence of testimony requisites of. A motion to~ostwone a trialon grounds of the absence of evidenie shallonly be made upon affidavit showing the materiality of the evidence expected tobe obtained, and thatdue diligence has been used toprocure it. The court may alsorequire themoving party tostate, upon affidavit, the evidence which he expects toobtain, and 

## - if the adverse party thereupon admits that such evidence would be qiven, and that it be considered asactually given on the trial, or offered and overruled as improper, the trial shallnot be postponed; and upon terms thecourtmay, in its discretlon, upon good cause shown, and in furtherance of justice, postpone a trial orproceeding upon other grounds than the absence of evidence." (Emphasis supplied.) Asnoted inthe underlined sectionsof the statutethis is a discretionary statute, and inview of the fulland complete admission, without cross-examination by defendant, made by the respondents we find no abuse of the trialcourt's exerciseof thatpower. This case began inJuly 1970 and almost 3 years passed before the dateof trialwas set inMay, 1973. This is

a rural county where trialcalendars arekept ata minimum, and with an out of districtjudge called tosit, with thejury on hand thatMonday and the admissions in Brown's testimony, in our opinion

### the State suffered no prejudice in the denial of a continuance. The appellant State relies heavily on our holding in Dean v. Carter, 131Mont. 304, 309 P.2d 1032. The Court in Dean did reverse and grant a new trial, but the case is not the factual situationwe have here. There the adverseparty would not allow the admittance of the evidence, as was done here. This Court in a number of opinions has interpreted section 93-4910, R.C.M. 1947, and in each we have looked at the circumstances in considering whether or not there has been an abuse of discretion. See Orem v. Hansen Packing Co., 91Mont. 222, 7 P.2d 546; Adams 

### v. Misener, 113 Mont. 559, 131 P.2d 472; Ward v. Strowd, 76 Mont. 93, 244 P. 1007. The next issue raises the question of whether the verdict is the result of passion and prejudice directed against the highway department. Was it a hometown decision as charged? We think not! Contrary to defendant's argument in brief, rural small counties are not themost liberal areas for dispensing governmental largess. Involved here was a taking that complicated the use of respondents' irrigation system,winter feeding and hay crop. A 

### rural jury heard the evidence and in all probability understood its totality of impact on the ranch operations far better than a jury composed of urban members. However thatmay be we find the State argument has not demonstrated any passion or prejudice and

as a matter of fact the jury awarded damages closer to the State's figure than to the respondents. We find this issue without merit. We next consider whether the trial court erred in denying the State's request for the jury to view the land'involved. The appellant State argues that under the particular circumstances of the case it was of great import that the jury view the premises, particularly in view of the testimony,as it concerned the culverts, bridges, irrigation canals and the river area. 

### In support of its

### position the appellant cites and relies on the holding of this Court in the cases of Statev. Lee, 103Mont. 482, 63 P.2d 135, and State v. Bradshaw Land Etc. Co., 99Mont. 95, 43 P.2d 674. See also Clark V. 

### ~orral/, 146 Mont. 374, 406 P.2d 822;Puetz v. Carlson, 139Mont. 373, 364 P.2d 742. Appellant acknowledges that both of the cases cited set forth the principle that allowing the jury to view the premises isdiscretionary and in view of the evidence submitted at trial we find no error in the court's denial of appellant's motion. Ten of the jury,when asked whether they were familiar with the property, answered in the affirmative. In addition, the jury had before them the exhibits, which showed: a right-of-waymap; nineteen photographs of the property; and

an enlarged aerial photograph. All of these exhibits were effectively used by counsel

on both sides of the case and the jury indicated that it thoroughly understood the factproblem in the case. We do not believe that the two cases above cited are applicable to this case and find nomerit to this issue. The last issue raised the question of whether the trial court abused its discretion in refusing to grant a new trial to the State. We have carefully reviewed all the evidence and exhibits of the case and find no abuse of discretion. Finding no reversible error, the judgment is affirmed. 

# n

Justice We 

### concur: '/

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C 

### Chief

### ust tide

Justices -6-