No. 12138 INTHE SUPREME COURT OF 

### THE STATE OF MONTANA 1972

THE STATE OF MONTANA, Acting by and through the StateHighway Commission of the State of Montana, Plaintiff and Respondent,

DONALD V. ROTH and JEANNE A. ROTH, HUSBAND AND WIFE, Defendants and Appellants.

Appeal from: District Court of the Fourth Judicial District, Honorable Jack L. Green, Judge presiding. Counsel of Record : For Appellants: Edward T. Dussault argued, Missoula, Montana. For Respondent : K. M. Bridenstine argued, Helena, Montana.

Submitted: March 15, 1972 Decided : 

### MAY 

## 1

## 11!37i?, Filed: 

# my 11

### Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. This isan appeal from ajudgment entered in Missoula County districtcourt on a jury verdict inthe amount of $7,250, in a condemnation action brought by the Stateof Montana, respondent herein, to acquire certainwater rights and waters of the defendants, appellants herein. The facts inthis casemay be summarized as follows: This eminent domain action was filed by the StateHighway Commission of Montana (hereinafter referred to as Commission) to acquire an interest owned by defendants Donald V. Roth and Jeanne A. Roth, for Interstate highway purposes. The interest to be acquired isa water appropriation dated in the year 1910, which may be designated as a "stream" flowing out of culvert No. 233 on the Northern Pacific Railway line. The notice of appropriation did not specify any amount of water. Further, the exact point of appropriation was not accurately determined attrial, as none of thewitnesses were ableto pinpoint culvertNo. 233. There was a culvert under Highway 10which connected to a 24" x 12' pipe, which in 

### turn connected toa 36" x 72' pipe under the Northern Pacific mainline. Thislatter 36" x 72' pipe discharged into a ditch running parallel to and along the southerly portion of the Northern Pacific right-ofway to a point where itintersected the Clinton Irrigation District canal. Pursuant to a long standing agreement between defendant Donald Roth and the Clinton Irrigation District Commissioners, waters from this ditch were conducted in the canal to a point of intersection with Roths' private ditch and then on toRoths' water irrigation system. The Interstateproject relocated the Clinton Canal and reestablished defendant Donald Roth's connection with itthrough a system of pipe-headgate and ditch, pursuant to the request of Roth for the restoration of irrigation water to his lands. In addition to the water appropriation inquestion, defendant Roth owned about 600 inches from the Clark Fork River which, through

an agreement with the Clinton Irrigation District commissioners, was conveyedtohis headgate free of charge as consideration for the commissioners being able to use Roth's former ditch. No dispute lies as to the continued availabilityof this 600 inch water right after Interstateconstruction. The water right in question originated from lower Gaiser Slough, situated

across Highway 10 from the ditch. No evidence was offered as to the condition of the pipes under the old highway and the Northern Pacific minline,

or the amount of water in the slough or itssource. Further, there was no evidence showing lower Gaiser Slough connected to the upper Gaiser Slough in 1910, or before. The state did introduce evidence showing the two sloughs were connected by a corrugated metal pipe; however, no evidence was introduced as to the condition of the pipe or if the water flowed through itin 1968. The evidence showed that after the Interstate is built, lower Gaiser Slough isto be filledwith "shot rock", then drained by a buried 18" perforated concrete drain connected to

### a 30" pipe under the Interstate and present Burlington Northern mainline. In addition, the latterwould then connect with an existing 30" concrete pipe under the adjoining Milwaukee mainline todischarge into a ditch constructed as part of the project to convey water back into the Clinton Canal ata point south of the Milwaukee mainline. The testimony indicated the system would return a substantial amount of water, and that drainage from this system would be availableto defendants. Itwas defendants' contention that they should receive $32,500 compensation for the acquisition of this appropriation atculvert No. 233. Their expert appraiser, Melvin Beck, valued the appropriation at$140 per miner's inch, for 90 miner's inches, totalling $12,600. 

### Mr. Beck then testified toreplace the lost "stock water", three wells ata price of $7,000 each would be required. The court then required Beck toelect between the two value figures forthe taking. Consequently Beck chose the three wells at$7,000, total1 ing $21,000. Beck attempted to evaluate the appropriation,

### firstfor irrigation water purposes, and then for stock water purposes. The commission presented testimony from Ivan Shaw, an expert appraiser, who predicated compensation on construction plans

### ,and the cost of one stockwaterwe11 at$5,000. Defendants' counsel cross-examined Shaw atlength about water from under the fill inlower Gaiser Slough, and Shaw testified the water would be recovered. The we11 drillingcostswere authenticated by witness William Osborne, the well driller. Instructions tothejury included defendants' proposed No. 7, given

over objection as court's instruction No. 13,in which the high compensation testimony of defendant Donald Roth of $32,500 and the low testimony of Shaw at$5,000 were stated as the limits for thejury. There was no objection by either of the parties as tothe form of the verdict. The jury returned

a verdict forRoth, awarding him $7,250 compensation. Appellants raise two issues for review inthismatter: (1) That the trial court erred inrefusing to allow testimony of comparable salesof water for irrigation purposes; and (2) That the verdict was rendered on state'sevidence not supported by fact. We find no merit whatsoever in defendants' contention that the districtcourt erred in limiting the defendants to testimony relating to the value of Gaiser Slough waters to stockwater value only. Specificallythe record shows defendants did put intoevidence a comparable saleof 61 inches of water for irrigation purposes thatwas sold for $140 per miner's inch. Defendants contend that the districtcourt, by itsruling, took away from thejury the right toconsider the value of Gaiser Slough waters for irrigation purposes, when the record was replete withtestimony of the use of the water for irrigation purposes fortwenty-nine years by the defendants and forthree decades prior theretoby their predecessors. 

### Our review of all the testimony contained within the record indicates thiswas not atall the case and we deem itnecessary to statewith particu-larity the actual sequence of events atthe trial of this matter which lends clarityto thejury's verdict. The record shows that Melvin Beck, defendants' expert appraiser, testified he had a comparable saleof water for irrigation purposes wherein 61 inches of water was sold for $140 an inch. A second offered salewas correctly refused by the court on the ground of surprise. Ata later point in the trial of thismatter, the court required Mr. Beck to electwhich of the two valuations of the thing taken he would use, then excluded the other. Mr. Beck used themeasurements made by witnesses Carden and Marlowe, of 90 miner's inches applied to the appropriation inquestion, multiplied by $140 an inch, for a total of $12,600 for the water claimed tobe acquired by the Commission. Beck then revalued this same water for stock water purposes, measuring this particular value by the extension of cost of three wells at$7,000 each, or $21,000. From the foregoing, itisclear that had the court allowed Beck to add $12,600 and $21,000, this would have totalled $361.50 or more per miner5 inch, amounting to a double value of the "taking". Defendants citethe decision of Perkins 

### v. Kramer, 148Mont. 355, 423 P.2d 587, for the proposition that itisthe announced policy of this stateto promote the irrigation of land whenever possible, and therefore in the instant case the court's taking of an irrigation right without any compensation whatsoever iscontrary to that decision. We hold the Perkins case bears no applicabilityto the matter before us. In addition the record shows there was no evidence that defendants lost irrigation water. The facts show defendants received 600 inches of water from the Clark Fork River, which was carried freeof cost to them attheir ditch. Defendant Donald Roth further admitted he could only make beneficial use of 140miner's inches. Defendants statethe following intheir brief: "As we stated, not only did the defendants and their predecessors have an established water right since 1910 out of the Gaiser Sloughs, they had also established a ditch right to convey said waters from lower Gaiser Slough to their property situated nearly 2 miles away.Most of said ditch rightwas on Northern Pacific (Burl

### ington-Northern),Milwaukee Ry. and pub1ic domain. In 1946 the Staterecognized thewater right and ditch right of defendants by placing a 24 inch concrete pipe for a distance of over 1600 feetunder the then relocated Highway 10, East." 

### Our examination of the record indicates defendants failed to prove atthe trial any of the above allegations. The 1910 appropriation specified

no source, no amount, nor any ditch right. We can find nothing to support defendants' contention that they had any ditch right on railway property or public domain, nor did defendants offer any evidence to support their contention that the state "recognized" their rights in 1946 by putting in a pipe between upper and lower Gaiser Sloughs. If this evidence was essential attrial, and if proof of these "facts" was necessary to support defendants' demands, defendants, not the commission, had the burden of proof to establish them. St. Hwy. Cornm'n 

### v. Emery, 156Mont. 507, 481 P.2d 686; StateHighway Cornm'n 

### v. Barnes, 151 Mont. 300, 433 P.2d 16; State

### v. Peterson, 134Mont. 52, 328 P.2d 617. In itssimplest form, thismatter before us involved a resolution of

a factual question by ajury, namely, the determination of a value for the interestdefendants owned and the stateof Montana acquired. The court properly instructed thejury that they could award defendants compensation as high as $32,500, defendants' demand, or $5,000, which comprised the state's value evidence. We cannot countenance defendants

### ' contention that the court's limitation of witness Beck's testimony to $21,213 1 imited thejury's considerations of appropriate value. We find, inaddition, no merit to defendants' final point of contention that the verdict was rendered on state'sevidence not supported by fact. First, the record reveals that the Commission did not guarantee anything would drain from the proposed system, nor that the defendants would, infact, receive any water from it. The Commission's feeappraiser, 

### Mr. Shaw, refused to guarantee defendants would receive water from the new system of drains, though he stated,in his opinion,he feltapproximately 70 inches would berecovered. No effortwas made by defendants tomove to strikeormodify Shawls opinion testimony. There was no stipulationor agreement by the Commission thatwater would be recovered afterconstruction. Referring specificallytothe 30" pipe under the Milwaukee Railroad mainline, to which the drainage system was tobe connected, 

### Mr. JerryTahija, state's witness, testified the connections were not completed atthe time of trial, and Shaw testified there was a "prettynice stream there". Defendant Donald Roth returned to the stand forrebuttal and testified exactly to the contrary, denying there was "any" stream coming from that specificpipe. There was, therefore, a factual situation forthejury to resolve. Ithas long been the rule of law inthis stateand otherjurisdictions that in the absence of a clear showing of abuse of discretion the determination of the trial court ingranting ordenying amotion for a new trial will not be disturbed. StateHighway Comm'n 

### v. Manry, 143Mont. 382, 390 P.2d 97. Further, the burden ison themovant to prove abuse of discretion. StateHighway Comm'n 

### v. Schmidt, 143Mont. 505, 391 P.2d 692. In addition, itis a principle of law inthis statethatwhere there is substantial evidence to support a verdict, the lower court's refusal to grant a new trial will not be disturbed. Kincheloe 

### v. Rygg, 152 Mont. 187, 488 P.2d 140. 

### Our review of all testimony contained herein leads 

### us tothe conclusion there was substantial evidence to support thejury's verdict. The jury was asked to determine one 

### sum for their award to defendants. The verdictform submitted by defendants required only that one sum, and infact the amount awarded the defendants by thejury was higher than the evidence offered by the Commission. We feel instruction No. 13which reads in part

as follows was proper: "You may not award compensation inexcess of the amount claimed by the defendants, which amount is$32,500.00; nor may your verdict be 1 ess than $5,000.00, the amount of the lowest testimony offered by the State in this matter.

### "Finally, defendants seem to infer intheir briefsome misconduct by thejury inthe trial of this matter. They attempt to establish such misconduct by an affidavitof their counsel filedwith theirmotion for a new trial, and a statement intheir brief that they had affidavits of three jury members. Whatever defendants

### ' contention of any jury misconduct, itisthe law of this state ajury cannot impeach itsverdict on affidavits of any member or members ofthejury except for that ground set forth in section 93-5603(2), R.C.M. 1947. Rasmussen v. Sibert, 153 Mont. 286, 456 P.2d 835. Further, nothing inthis appeal raises the ruleofGoff v. Kinzle, 14'8 Mont. 61, 417 P.2d 105. For the foregoing rea

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