No. 14577 

IN THE SUP= COURT OF THE STATE OF M3NTAN.A 

1979 

THE STATE: OF IXlNDNA, ACTING BY AND 

THROUGH THE DEPARTCENT OF HIGHmYS 

OF THE STATE OF IalvBNA, 

Plaintiff and Appellant, 

Defendant and Respondent. 

Appeal from: District Court of the Fourth Judicial ~istrict, 

Honorable Jack L. Green, Jdge presiding, and 

Honorable E. Gardner Brownlee, Judge presiding. 

Counsel of Record: 

For Appellant: 

M. Gene ELatchy, Highway Legal Dept., Helena, Montana 

For Respondent: 

Wne, Karlberg and Haddon, Missoula, P4xkana 

Kcch and Menna, Hamilton, Wntana 

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-.I-: 2 49R 

Filed: 

Subnitted on briefs: May 31, 1979 - ~- 

'J i- ' 

Decided : ? 19B 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal in an eminent domain proceeding by 

the State of Montana from the District Court's granting of 

respondent's petition for final judgment and order fixing 

costs as prayed for by respondent. 

Appellant filed a complaint in Ravalli County on March 

23, 1978, seeking condemnation of respondent's property for 

purposes of constructing a public highway. On April 3, 

respondent filed an answer claiming $66,000 as just compensation for the taking of her property and for the depreciation that would accrue to the property not taken. The 

District Court then nominated and appointed three land value 

commissioners to ascertain the amount of compensation to be 

paid. 

After a hearing on May 12, the commissioners filed a 

report with the clerk of court on June 6 assessing respondent's just compensation as $40,000, $9,100 of which was for 

the property taken and $30,900 of which was for the property 

not taken. A copy of the report and notice of its entry 

were mailed to the parties by the clerk on June 6. 

On August 3, 58 days after the commissioners' assessment was filed, appellant filed a notice of appeal contesting the assessment. Respondent subsequently petitioned 

the District Court for judgment for the reason that appellant had failed to file a notice of appeal within 30 days 

after the service of the notice of filing of the commissioners' report and a copy of that report. In response, 

appellant filed a motion requesting an order vacating the 

commissioners' report of June 6. The District Court, however, denied appellant' s motion and granted judgment in 
favor of respondent on August 18. In a separate proceeding 

the District Court entered an order on September 18 allowing 

necessary costs of the litigation as prayed for by respondent. Following these rulings, appellant's motions to amend 

the court's findings, conclusions and order of August 31, 

and the court's ruling on September 18 with respect to costs 

were denied. An appeal was filed with this Court on October 

31. 

On appeal we consider the following two issues: 

1. Did the District Court err in determining that 

appellant failed to appeal from the land value comrnissioners' 

report within the time provided by law, and hence, the court 

lacked jurisdiction to hear the appeal? 

2. Did the District Court err in finding, as necessary 

and reasonable expenses, attorney fees which were based upon 

a contingency fee contract and appraiser fees where the 

appraiser did not testify at the land commissioners' hearing? 

With respect to the first issue, the statutory procedure for appealing a commissioners' assessment in an eminent 

domain proceeding is stated in section 70-30-304, WA, and 

provides in pertinent part: 

"Appeal to District Court from Assessment of 

~ommissioners. (1) An appeal from any assessment made by the commissioners must be taken 

and prosecuted in the court where the report of 

said commissioners is filed by any party interested. Such appeal must be taken within the 

period of thirty (30) days after the service 

upon appellant of the notice of the filing of 

the award . . ." 

Here, the commissioners' report was mailed to the 

parties by the clerk of court on June 6. While the thirtyday appeal period would have normally expired on July 6, 

appellant could have claimed extensions until July 10. In 

computing the time period for purposes of appeal, the 
Montana Rules of Civil Procedure provide for a three-day 

extension when a party receives service by mail and has the 

right to do some act, such as file an appeal, and an extension when the last day of the period falls on a Sunday. 

Rules 6 (e) and 6 (a), M.R.Civ.P. 

Appellant, however, filed a notice of appeal on August 

3, 58 days after the commissioners' assessment was filed. 

Appellant nevertheless maintains that the notice of appeal 

was timely because the time for appeal did not begin to run 

when the manner of service departed from the method of 

service prescribed by the statute. When the statute calls 

for service as "in the manner of a summons," appellant 

contends that service by mail will not suffice and that a 

departure from the prescribed method is a jurisdictional 

defect which cannot be waived. Appellant argues for a 

strict construction of section 70-30-303, MCA, which provides : 

"Report of Commissioners. The report of commissioners shall be made on such forms as are provided for their use by authority of the court. 

Such report must be filed . . . with the clerk 

of court and the Clerk must forthwith notify the 

parties that such report has been filed, with 

notice, together with a true copy of said report, 

must be served upon all the parties interested, 

in the same manner as a summons . . ." 

Respondent, in turn, places emphasis upon appellant's 

receiving actual notice of the comrnissioners~ report. We 

are referred to the findings of fact of the District Court 

where it was found that appellant received a copy of the 

commissioners' report and notice of its entry on June 8. 

Respondent also argues that this Court has implicitly held 

that the manner of service prescribed under the eminent 

domain statutes is a procedural defect which may be waived. 

State of Montana v. Helehan (1977), 171 Mont. 473, 559 P.2d 
817. In Helehan service of the commissioners' report was 

made by mail and such service did not prevent the court from 

assuming jurisdiction of the appeal. 

In this case, however, we refrain from approving of 

methods of service which depart from prescribed statutory 

procedures. Nor do we adopt respondent's interpretation of 

Helehan. We simply hold that where a party receives actual 

notice of the commissioners' report in an eminent domain 

proceeding and fails to file a notice of appeal within the 

time provided by law, the court is without jurisdiction to 

hear the appeal. 

Since the District Court found that appellant received 

actual notice and admitted service on June 8 and that finding has not been shown to be clearly erroneous, it shall not 

be set aside. Rule 52(a), M.R.Civ.P.; Farmer's State Bank 

v. Mobile Homes Unlimited (1979), Mon t . , 593 P.2d 

734, 36 St.Rep. 792, 796. Accordingly, we hold that appellant's notice of appeal was not timely filed and that the 

District Court lacked jurisdiction to hear the appeal. 

Appellant challenges the appraiser's fee upon two 

grounds--the necessity of the expense, and the fact that the 

appraiser did not testify at the commission hearing. Appellant contends that not calling the appraiser to testify at 

the commission hearing deprived it of the right of crossexamination of the appraiser. 

At the cost hearing respondent produced proof of payment of the appraiser by a $1,400 cashier's check. he 

court stated that it considered the employment of an appraiser a necessary action by the landowner to prepare her 

case, and that the state should reasonably expect that the 

landowners would look to experts in order to determine their 

damages by virtue of the taking. 
ÿ he only testimony before the District Court as to the 

reasonableness of the appraiser's charges was produced by 

respondent. That testimony showed that a charge of $175 per 

day for eight days was reasonable and usual for the services 

of a professional appraiser. The expense was necessarily 

incurred by respondent and under section 70-30-306, MCA, was 

properly awarded here. 

With respect to the attorney fees, the evidence shows 

that the final offer to respondent from appellant was $7,800. 

Respondent entered into a contingent fee arrangement with 

her lawyers in May 1977 fixing the attorneys' compensation 

at 30 percent of any recovery in excess of $7,800. The 

retainer contract provided that any amount awarded respondent by the court as attorney fees would be a credit against 

the contingent fee. Testimony at the cost hearing produced 

by respondent showed that a 30 percent contingent fee contract in eminent domain cases, on the cases established 

here, was reasonable, and perhaps lower than the usual onethird contingent fee charged by some lawyers. It was admitted that counsel for respondent were experienced practitioners in eminent domain cases. It was also shown that $50 

per hour was the prevailing rate for lawyers' services in 

the area at that time and that in this case the attorneys 

had logged a total of 80 hours of work, excluding the work 

for the cost hearing. 

Respondent claimed she was entitled to the amount of 

fees calculated under the contingent fee contract because 

she was obligated to pay the same in any event and because 

the contingent fee was necessary and reasonable under the 

circumstances. Appellant objected, claiming that any fee in 

excess of the hourly rate was contra to section 70-30-306, 

MCA . 
Section 70-30-306, MCA, became effective July 1, 1977. 

The contingent fee was agreed upon in May 1977, before the 

effective date of the statute. The District Court decided 

that since the statute, which limits attorney fees to be 

recovered by condemnees to customary hourly rates for attorneys in the county involved, became effective after the 

contingent fee contract was agreed to, it would award the 

contingent fee under the statute which preceded section 70- 

30-306, MCA. Accordingly, the District Court awarded $9,600 

in attorney fees. 

Because the retainer contract was agreed to before 

section 70-30-306 came into effect, this case is controlled 

by State v. Olsen (1975), 166 Mont. 139, 531 P.2d 1330. In 

Olsen this Court approved a contingent fee contract of 25 

percent where proof of the reasonableness of the percentage 

was made at the hearing, as necessary to make the landowner 

whole under Article 11, Section 29, 1972 Montana Constitution. Here appellant offered no evidence as to either a 

reasonable hourly rate or the reasonableness of 30 percent 

contingent fee contract. The District Court acted according 

to the evidence before it and the prevailing law. Therefore, 

its determination of attorney fees in this case will not be 

disturbed. 

Affirmed. 

We concur: I 

/ 

/j Justices