No. 92-158 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993 CITY OF BILLINGS, a Montana municipal corporation, Plaintiff, Counterdefendant and Respondent,

JEAN HUNT; HELEN KELLER; MAX H. HEFFNER: ELEANOR M. HEFFNER; C.M. HEFFNER, JR.; AMELIA 0. HEFFNER; INTERNALREVENUE SERVICE; UNITED STATES OF AMERICA and DEPARTMENT OF REVENUE STATE OF MONTANA, Defendants, DENNIS J. RUE CO., INC., a/k/a DENNIS J. RUE, INC. ; ANGIE JUROVICH, THOMAS L. FERGUSON, TRUSTEE; GARY KAINU; PATRICIA I. KAINU; EDWARD S. MARTYR, a/k/a E.S. MARTYR; BETTY MARTYR; ABBY FERGUSON, TRUSTEE; DONALD L. FERGUSON; THOMAS L. FERGUSON; JOHN EDWARD FERGUSON: KELLIE ANN FERGUSON;MYRNA A. CLARK; THE ABBY FERGUSON TRUST; THE ABBY FERGUSON IRREVOCABLE TRUST; UNIVEST, INC.; and ROBERT P. LIVENGOOD, Defendants, Counterclaimants and Appellants.

APPEAL FROM: DistrictCourt of theThirteenthJudicial District, In and for the County of Yellowstone, The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD: For Appellant: Mark D. Parker, Parker Law Firm, Billings, Montana For Respondent: KennethD. Peterson, Peterson& Schofield,Billings, Montana

Submitted: December 15, 1992

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## 51993 Decided: February 25, 1993 Submitted: December 15, 1992

### Justice Fred J. 

### Weber delivered the Opinion of the Court. This is an appeal from an order of the Thirteenth Judicial District Court, Yellowstone County, refusing to award interest to appellants under 5 

### 70-30-302(2), MCA, pursuant to a 

### condemnation proceeding taking vacant, undeveloped land. We reverse. Appellants present the following issues for review: 1. 

### Did the District Court err in refusing to award interest under 5 

### 70-30-302,MCA,when the Cityof Billings condemnedvacant, undeveloped land? 2. Did the District Court err in awarding out-of-state witness travel expenses? The appellants are the contract purchasers of real property legally described as Certificate of Survey 1805 consisting of 12.216 acres in Yellowstone County,Montana. The subject land is located on the VimsMsouth of Highway 318 at the southeast end of Logan International Airport in Billings, Montana. The parties stipulated that the highest and best use of the land was for professional offices. In 1986, the City of Billings (City) offered topurchase all 12.216 acres of Certificate of Survey 1805 for $293,200. The landowners rejected the City's offer. On September 17, 1987, the City began condemnation proceedings under its power of eminent domain and served summonses on defendants in September 1987. On February 29, 1988, the City moved for a preliminary condemnation order which was subsequently issued by the DistrictCourt on May 4, 1988. In August 1989, after a condemnation Commissioner~sHearing as required by 5 70-30-301, MCA, the Condemnation Commissioners reported that the current fair market value of thepropertywas $320,500. After a trial in February 1992

on the issue of fair market value, a jury found that the fair market value as of September 21, 1987 was $200,000. The jury's award did not include interest prior to the judgment date. Although appellants had requested a jury instruction which would have included interest from the date of

summonsaspart of the condemnationaward, the verdict formused at the trial did not include interest and the District Court did not instruct the jury to include interest. Appellants seasonably objected to the jury instruction, thereby preserving that question for appeal. I. Did the District Court err in refusing to award interestunder S 70-30-302(2), MCA, when the City of Billings condemned vacant, undeveloped land? The Fifth Amendment to the United States Constitution prohibits governmental entities from taking private property for public use under the power of eminent domain without paying Ifjust compensation." Similarly, Article 11, Section 29 of the Montana Constitution prohibits the taking or damaging of private property forpublicuse "without just compensationto the full extent of the loss having been first made to or paid into court for the owner.""Just compensationwmay include interest. Interest has been regarded as a substitute for computing appreciation of land value between the time of taking and the date of payment. 

### See United Statesv. 156.81 Acres of Land (9thCir. l982), 671 F.2d 336, 339, cert. denied, 459 U.S. 1086, 103 S.Ct. 569, 74 L.Ed.2d 931 (1982). Section 70-30-302,MCA, provides: Assessing compensation

# -- date and measure

# -- interest. (I) For the purpose of assessing compensation, the right thereto shall be deemed to have accrued at the date of the service of the summons,and its current fair market value as of thatdate shall be the measure of compensation for all property to be actually taken and the basis of depreciation in the current fair market 

### value of property not actually taken but injuriously affected. 

# . . . (2) 

### If an order be made letting 

### the plaintiff into possession, as provided in 70-30-311,the full amount finally awarded shall draw interest at the rate of 10% per annum from 

### the date of the service of the summons to the 

### earlier of the followingdates: (a) the date onwhich the right to appeal to the Montana supreme court expires or, if appeal 

### is filed, to the date of final decision by the supreme court; or (b) the date on which the property owner withdraws from court the full amount finally awarded.

(5) No improvementsput upon the property subsequent 

### to the date of the service of summons shall be included in the assessment of compensation or depreciation in current fair market value, nor shall the same be used 

### as the basis of computing such compensation or depreciation. Under 

### 5 70-30-302(2), MCA, if the City had been let into possession of the property, interest would have been awarded from the date of service of summons. Here, the District Court's Judgment putting the City in possessionwas dated March 10, 1992. The appellants received no interest from the date of summons 

### inSeptember 1987 to March 10, 1992. The subject land is vacant and unimproved with its primary value prior to condemnation as investment property. Appellants1 plan to develop the land for professional office buildings was foreclosed in September 1987 when they were served with summonses in this proceeding. Although appellants could have improved the land, § 70-30-302(5),MCA,wouldhaveprevented them fromreceiving compensation for any improvements to the land after the date of

summons. While 5 70-30-302, MCA, does deprive the owner of compensation for improvementsadded to the land, the land can still be used for other purposes suchasgrowing of crops,recreation,or parking, should that be the source of income. It is the general rule that a taking does not occuruntil: (1) legal title vests in the condemnor, (2) the condemnor enters into actual possession, or (3) the condemnor takes constructive possession eitherby causing damage toproperty orby depriving the

owner of fullbeneficial use of his land. Stewart & Grindle, Inc.

v. State (Alaska 1974), 524 P.2d 1242. The Alaska court noted in that case thatAlaska's statutory scheme deprived the owner ofboth investmentpotential and thepossibility of future development the moment a condemnation action commences. Stewart & Grindle, Inc., 524 P.2d at 1247. Section 70-30-302, MCA, essentially identicalto the Alaska statute, does the same thing. The owner, however, remains responsible for expenses incidentalto legal ownership. Statev. Nordstrom (N.J. 1969), 253

### A.2d 163. This includes mortgage payments, tort liability and the like. For example, 5 

### 70-30-314,MCA, specifically postpones the condemnor's responsibility for noxious weed control. In Montana, not all incidents of ownership 

### remain with the owner; property taxes become the responsibility of the condemnor. Section 70-30- 315,MCA. InStewart & 

### Grindle, Inc., 524 P.2d at 1247,theAlaska court reasoned:



# . . . If as amatter of constitutional law theproperty owner is entitled to interest from themoment the State takes legal possession,he should,afoniori, 

### receive interest where he has been deprived of all the economic advantages of legal ownership but is relieved of none of the liabilities. InNordstrom, a casewhich allowed interest from thedate the proceeding began, the court declined to set forth a firm rule and stated its desire to proceed on a case-by-case basis when dealing with unimproved property. Nordstrom, 253 A.2d at 165. TheAlaska court rejected this approach because it could not conceive of an instance in which owners of unimproved property would not be entitled to interest from the date of the suit (with appropriate set-offs forrentsandprofits). Stewart & 

### Grindle, Inc., 524 P.2d at 1249, n.24. We disagree with the Alaska court's assessment that interest should be paid from the date of service of summons in all cases where vacant and unimproved land is held for investment with aview toward ultimatedevelopment. Like theNordstromcourt,we conclude that it is advisable to proceed on a case-by-case basis in considering the awarding of interest on condemnations.In Manke v. Airport Authority of Washoe County (Nev. 1985)

## , 710 P.2d 80, 

### the 

### Nevada Supreme Court reversed a district court order refusing to award interest to owners of vacant and unimproved land located near an airport and held for investment. 

### The Nevada statute, like those in Alaska and Montana, foreclosed development of the condemnedproperty afterthe date of the serviceof summons. The facts in the casebefore us are strikingly similar to those in Manke, where the respondentlsobjective in condemning appellants1 property was to create a clear zone surrounding the airport. Significantly, the court said Our holding that a taking occurred in this case on the date of the service of summons is buttressed by the fact that the burden placed upon appellants by the service of summons directly corresponds to a benefit conferred upon respondent.



# . . 

# . Because development of appellant's property was frozen on the date of the service of summons,respondentlsobjective in condemning appellants1property was accomplished on that date. (Citationsomitted) Manke, 710 P.2d at 82. The same is true here. Appellants1 could not develop the property after the date 

### of summons; the City 

### of Billings achieved its objective on the date of summons. We agree with the reasoning inManke 

### and Nordstrom,which held that where owners 

### of vacant and unimproved land are deprived of 

### a31 economically 

### viable use of their property, a taking occurs at the inception of the eminent domainproceedings. See also United Statesv. 156.81 Acres of Land 671F.2d 

### at 340 (condemnation order that denied the landownersany economically 

### viable 

### use of their land was 

### a taking as of the date the condemnation began and interest was appropriate in 

### such

### circumstances). In Nordstrom, the court stated that rents, profits and beneficial use are to be applied in abatement and that interest should not run on monies deposited with the court. Nordstrom, 253 A.2d at 167. We adopt the following statement from Nordstrom: The awarding of interest does not lend itself to rigid guidelines, but rather is best considered on a case-by-case basis in ordertodetermine compensationwhich is lljust.la One of the critical variables in every case is the use to which the land is being put by the condemnees. There would be good cause to abate interest if the condemnees were left undisturbed in their enjoyment of the property by the condemnation proceeding, or if they continue to receive undiminished rents and profits from the use of the land up to the time the State takespossession. On the other hand, where the condemnation proceedings restrict the profitable use or enjoyment of the property, interest ordinarily should be allowed. Nordstrom, 253 A.2d at 165-66. Our standard of review for a district court's conclusions of law is whether they are correct. Steer, Inc. v. Dept. of Revenue (lggO), 245 Mont. 470, 

### 803 P.2d 601. We conclude that the landowners in this case were deprived of all economically viable

use of their vacant and unimproved property. As a result we conclude that the court erred in refusing to award interest. We hold that the landowners in this case were deprived of all economically viable use of their vacant, unimproved property and that they are entitled to interest from the date of service of

summons.

Did the District Court err in awarding out-of-state witness

### travel expenses? The District Court awarded $436.50 for travel costs forVerl Brady. Appellants contend that this amountwas improperly awarded because the City did not request travel forVerl Brady outside the state of Montana and because the law provides that costs are not allowable for travel outside the state. Appellants rely on Chilcott v. Rea (1916), 52 Mont. 134, 155 P. 

### 1114;and Bullard v. Zimmerman (1930), 88 Mont. 271, 292 P. 

### 730. Both Chilcott and Bullard held that mileage costs for witnesses were limited to expenses for travel within the state of Montana. The statute providing for allowable costs has remained unchanged since the dates of those decisions, except for its heading. Section 25-10- 201,MCA, provides in pertinent part: Costs generally allowable. 

### A party to whom costs are awarded in an action is entitled to include in his bill of costs his necessary disbursements,as follows: (1) the legal fees of witnesses, including mileage, or referees and other officers 

# . . . As noted, Chilcott and Bullard allowed mileage expense to travel within the state of Montana. In referring to prior interpretations of 

### 5 25-10-201,MCA, the District Court concluded that 

### 5 26-2-501(b), MCA, allowed mileage past the state line. Section 26-2-501(b) provides in pertinent part: (b)formileage in travelingto the place of trial orhearing, eachway, for eachmile, amileage allowance asprovided in 2- 18-503. Nothing in 26-2-501(b) provides for recovery of mileage costs for travel outside the state of Montana. We conclude that

### the District Court incorrectly applied the law in its calculation of costs. We hold the District Court erred in awarding out-of-state witness travel expenses. We reverse and remand the case to the District Court with instructions to modify its judgment of condemnation to include interest from the date of service of summonses and to reconsider its award of costs consistent with this opinion.

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### JusticesFebruary25, 1993 CERTIFICATEOFSERVICE Ihereby certify thatthefollowingorderwassentby UnitedStates mail,prepaid,tothefollowing named:

I

MarkD.Parker

' ParkerLawFirm P.O.Box7212 Billings,MT 59103-7212 LorraineD.Gallinger AssistantU.S. Attorney P.O. Box 1478 Billings,MT 59103 DaleF. Galles, Esq. Galles&Gunderson P.O. Box926 Biltings,MT 59103 BruceMcGinnis, Legal Counsel Dept.ofRevenue MitchellBldg. Helena,MT 59620 KennethD.Peterson Peterson&Schofield 2906ThirdAve.No. Billing!, MT 5910; Hon 

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EDSMITH CLERKOFTHESUPREMECOURT STATEOFMONTANA