No. 13080 INTHE SUPREME COURT OF THE STATE OF MONTANA

THE STATE OF MONTANA ACTING BY AND THROUGH THE DEPARTMENT OF HIGHWAYS OF THE STATE OF MONTANA, Plaintiff and Respondent,

CLYDE SCHRECKENDGUST

## ,JR. a/k/a CLYDE SCHRECKENDGUST

## , Defendant and Appellant.

Appeal from: 9istrict Court of the Fourth Judicial District, Honorable Edward Dussault, Judge presiding. Counsel of Record: For Appellant: Tipp and Hoven, Missoula, Montana QouglasSkjelset argued, Missoula, Montana

Daniel J. Sullivan and James Beck, Helena, Montana James Beck argued, Helena, Montana

310 ;! 

### ,

## ' Filed: --- - Submitted: April 20, 1976 Decided:Hon. M. James Sorte, District Judge, sitting forMr. Chief Justice James T. Harrison, delivered the Opinion of the Court:

The state of Montana by and through the department oihighways, brought condemnation proceedings in the district court, Ravalli County, against Clyde Schreckendgust for two parcels of land. Defendant answered and counterclaimed asking for damages inthe sum of $125,250. A commission hearing resulted in an award of $62,356. An appeal by the state of Montana to the district court resulted in ajury verdict of $29,600 and defendant appealed to this Court. Involved iscondemnation of 9.6 acres out of a tract of land of 24.14 acres referred to as parcel 6, which liesnear Florence, Montana. The 24.14 acres had been surveyed and platted into lots in 

### 1967but the plat was never filed. Immediately adjacent to the 24.14 acre tractwas another tract owned by defendant's corporation and known as Forest View Estates, Unit 1, which had been platted and also filed. At the south end of the 24.14 acre parcel there was another parcel of land owned by defendant and condemned in this action, containing 1.6 acres of land referred to as parcel 5. The state's attorneys entered into a stipulation with defendant that provided the value of the 1.6 acres (parcel 5) would be computed by multiplying per acreage price determined inparcel 6 and adding

an increment of $1,000 for size. Defendant alleges the trialcourt erred in two respects: (1) The court did not allow defendant's appraisers to testify on value of the condemned lots compared to platted subdivision property.(2) 

### The court erred in refusing to allow defendant to introduce a value, on either direct testimony of his appraiser,
or cross-examinationof the state's expert, of comparable commercial sales of property. With reference to the first alleged error, the record discloses defendant called two appraisalwitnesses, Charles Fricke and Roy Rodenberger. Fricke testified that he based his opinion of value on the basis ofbuilding sites and was permitted, over objection, to state that in his opinion the per acre value of the landwas $10,500. Defendant's other appraisal witness Roy Rodenberger,
was allowed to testify as to value of the 9.6 acres for the highest and best use as residential sites and subdivision. However, the district courtwould not permit him to use comparable sales located in an existing subdivisionbecause the property sought to be condemnedwas not in an existing subdivision. In the refusal to allow testimony of comparable sales in an existing subdivision,wenote the court did not restrict the witness' testimony on a per acre value of the land. He testified, as he did in a deposition prior to trial, that the highest and best
use of the property was "residential sales or lots" and based upon that concluded the land's value was $6,867per acre. Consequently,appraiser Frickewas permitted to testify

as 

### to the 

### land's value for building sites at $10,500

### per acre and appraiser Rodenbergerwas permitted to testify to the same value of $6,867 per acre for "residential sales or lots" as stated inhis deposition prior to trial. The general rule is that the admission of evidence of

### comparable sales is within the discretion of the district court and will not be reversed unless therewas manifest abuse of that discretion. InUnited States v. 55.22 Acres of Land,Etc., Yakima Co.,Wash., 411F.2d 432, 434, the Ninth Circuit Court ofAppeals stated the rule thusly: 

### "It follows that when evidence pertaining to an assertedly comparable sale is tendered, and objection is made thereto,a preliminary question of admissibility is presented. The determination of that question calls for an exercise of a sound discretionby the trial court, and the ruling thereon is reviewable only for an abuse of discretion. United States v. EdenMemorial Park Association, 9 Cir., 350 F.2d 933,935." ~'SL 

### See: United States v.

## &, 442F.2d 1325 (1971). The Illinois Supreme Court, in City of Chicago v. Blanton, 15 I11.2d 198, 154N.E.2d 242,244,245,considered the exclusion of an alleged comparable saleby the trial court. In affirming that court's ruling, it held: 

## "*

# *

# * No general rule canbe laid down regarding the degree of similaritywhich must exist between property sold and that condemned in order to make evidence of such sale proper. Since no two pieces of real estate are exactly alike and since economic influences are constantlychanging, the admission of suchproof rests largely in the discretion of the trial court,and its decisionwill be reversed only where such discretionhas been clearly abused." See: Salt Lake County v. Kazura, 22 Utah 2d 313, 452 P.2d 869; Statev. Rowley, 74Wash.2d 328,

### 444 P.2d 695;Adams v. City of Atlanta, 122Ga.App. 662, 178 S.E.2d 291;Nystrom v. State, 80 S.D. 

### 58, 119 N.W.2d 

### 123;H.E. 

### Fletcher Co. v. Commonwealth, 350 Mass. 316, 214N.E.2d 721;Nonni v. Commonwealth,

### 356 Mass. 264, 249 N.E.2d 644. The general rule is that evidence of salesmay be introduced as long as they are truly comparable. This Court, in State Highway Comm'nv. Churchwell, 146Mont. 52,60, 403 P.2d 751, said:

# "*** Concerning the admission of evidence, either of value before or after the taking, the problem isone of comparability or similarity. In this case ashereinafter pointed out the facts do not make a case for similarity or comparability. See Vol. 85 A.L.R.2d, pages 130 to 163.I' In Churchwell this Court acknowledged that platted land was not comparable to raw land: "The Sprunger property was an acreage saleas against the appellants' allegation that theirs was platted land." This follows the general rule that sales of platted land should

not be used tovalue land that isunplatted, especially in situations were there isevidence of sales of unplatted land in the

area.
InWaukegan Park Dist. v. FirstNational Bank of Lake Forest, 22 I11.2d 238, 174N.E.2d 824,827, the Illinois Supreme
Court held the trialcourt properly struck the testimony of the
landowner's appraiser because he referred to sales in subdivisions
and said:

If* 

# ** There was no error in striking the testimony. The property involved in the present proceedings 

### is acreage property which 

### isunsubdivided. The testimony sought tobe introduced related to property which had been subdivided into lots. .It iswell established that the latter is not similar to unsubdivided or acre property and that the price of such lots isnot relevant infixing thevalue of property such as that in the cases atbar." StateRoad Commission v. Ferguson, 148W.Vir.742, 137 S.E.2d 206, 211, involved the condemnation of 10.22 acres of land forhighway purposes. During the trialof the case thetrial court pe~mitted a witness to testify as to the prices of lots in an existing subdivision. The West Virginia Supreme Court held thiswas error, noting:

" 

# ** In the instant case, Mr. Canterbury testified about a lotwhich was sold from an existing subdivision. The property involved inth&proceeding is a tract of land of approximately eleven acres. There is no similaritywhatever between the two. If this evidencewere allowed the jury would be required to investigate collateral issues, such as themany items of cost which necessarilywould be incurred toconvert the subject property into lots. This could lead only to confusion and cause the jury to engage in speculation and conjecture.

1IPertinent to the instant proceeding, many courts have held that evidence of the value of platted or subdivided land 

### isnot admissible toprove the value of acre or unplatted property. Holding such evidence inadmissible, the Court, inCity oiChicago v. Pridmore, etal., 12 I11.2d 447, 147 N.E.2d 54, commented as follows: 'This court has consistentlyheld that property which has been subdivided into lots 

### isnot similar toor similarly conditioned asunsubdivided or acre property.' SeeAnnotation, 85 A.L.R. 2d 110, at p. 139, etseq., and cases cited therein.11 The Colorado Supreme Court, inDepartment of Highways v. Schulhoff, 167 Col. 72, 445 P.2d 402,407, considered the admissibility of lot sales inan eminent domain actionwhere the property sought tobe condemned was not subdivided. In that case the court refused to admit evidence of such sales. The landowner, on cross appeal, urged this as error. The Supreme Court affirmed the ruling of the trialcourt, holding: "In passing on the degree of comparability of the saleswhich the Schulhoffs attempted to introduce into evidence to Parcel No. 320, the trialcourt correctlyruled: 

## "'*

# *

# * the Court does not consider platted subdivisions, which likelyhave streets, possibly alleys and curbs and gutters, paved streets, utilities, grading and other matter which areusually in subdivisions, comparable to the property inquestionin this case, and therefore refuses topermit testimony as to the value of these lots, even though they arecalledcomparable lots.

"I* 

# *

# * there are somany elements in subdivisions that aren't inunimproved property that it 

### is difficult to evaluate or compare the two.

## ' "The authorities support the trialcourt's ruling. We quotewith approval the following language of the court inStateRoads Commission v. Wood, 207 Md. 369, 114A.2d 636, apropos of the general rule: 

## "

## '*

# * *he vice incomparing subdivided land and unsubdivided land lies in the fact that the comparison is between a wholesale and a retailprice for the price of the platted lots includes the expense of subdividing and the promotional and sales costs of moving the individual lots.

# ***' [Citing cases]." This rulewas reaffirmed by the Colorado Supreme Court in Board of County Com'rs v. VailAssociates, Ltd.,l71 Co1.381,

Here, the transcript reveals therewas testimony atthe trialof comparable sales of undivided property in the area of the condemned land. The trialcourt concluded the land in question

was not subdivided inasmuch as the plat had never been filed. Defendant by not filing the subdivision plat, obtained some advantages inregard to taxes on the property and the non-dedication of such land to the public. Lot sales inan established subdivision recognize and take into account these factors: the cost of utilities furnished with the lots, such as gas, electricity, water, sewer and roads, either paved or unpaved; (2) cost of land acquisition, platting and profit tothe subdivider; (3) sellingexpenses such as commissions and advertising, and forhold-expenses such as taxes, and interest costs on the unsold land.

### These costs have 

# - not been incurred by the personwho has not filed the subdivision plat and consequently the land in question in this case was not comparable to platted lots and the trial court did not abuse its discretion. With reference to the alleged second error, a reading of the transcript does not sustain the argument that the defendant
was prevented from introducing the evidence on either direct testimony or on cross-examinationof the state's experts concerning the sale of comparable commercialproperty. 

### A reading of the transcript indicates the court did not restrict the cross-examination. The only objection to any cross-examinationwas when defendant attempted to question awitness for the state about the sale fromdefendant to BellMcCall Company. Thewitness testifiedhe did not know the answer to the question. Defendant then attempted to premise the questionwith the answer he wanted from the witness. An objectionwas made to this on the ground that thewitness stated that he did not know the purchase price and the court sustained the objection. It is clear that counsel cannot put an answer into evidence through the guise of asking another questionwith the answer as a premise. In any event the question was withdrawn by defendant. The statemade no objection to the cross-examinationof the state's second appraisalwitness and consequently the court did not restrict the cross-examination of the state's witnesses by defendant. Defendant also alleges the court refused inhis direct examination to allowhim to place a dollar value concerning sales of commercialproperty. The questionhere is whether or not the trial court abused its discretion in its ruling.At the trialRodenberger was called to the stand and testified, as he did in his deposition prior to trial, that the land had a highest and best use for "residential sites and subdivision

# ." Defendant also attempted to introduce evidence of a sale of .28 acres toBell McCall Company. The court ruled that this salewas covered by a stipulationpreviously entered intoby the parties and the testimony was improper. Defendant made an offer of proof which was denied by the court, and the court gave
an additional reason, the fact that the salewas forcommercial purposes as Rodenberger had testified that the highest and best use of the land was for residential sites. The witness was allowed to testify that inhis opinion the land was worth $6,867 per acre. The following day the witness Rodenberger attempted to testify that he was now of the opinion that the property had the highest and best use for residential and/or comercial. The state objected on the ground that no proper foundation had been provided and surprise, because of his previous deposition and testimony. The objectionwas sustained by the trialcourt. Defendant made another offer of proof which was denied. The statemade a motion in limine prior to trialrequesting an order prohibiting defendant orhis attorney or witnesses frommaking any reference to the value of a tract of land described in the complaint as parcel 5, which included the Bell McCall Company property. The motion was not resisted by defendant. Moreover, the Bell McCall Company sale involved .28 acres
as compared with 

### 24.14 acres 

### in the parcel described as parcel 

### 6in this case. They arenot comparable in size. The state's witnesses testified the property was not comparable because it was project influenced, itwas too small and it was a service station sale. There was no error in the court's ruling. InMontana Power Company v. Wolfe, Mont

# . Y 545 P.2d 674, 33 St.Rep. 172, 174, thisCourt said: 

### "*

# ** Yet it 

### iswell established that appellate review of comparable sale evidence admitted by the district court is limited. 5Nichols on Eminent Domain, 

### 5 21.31, pp. 21-54 to 21-59, states: "'Similarity does not mean identical, but having a resemblance. Obviously, no two properties can be exactly alike, and no general rule can be laid down regarding the degree of similarity that must exist tomake such evidence admissible. It must necessarily vary with the circumstances of each particular case. Whether the properties are sufficiently similar tohave some bearing on the value under consideration, and tobe of any aid to thejury, must necessarily rest largely in the sound discretion of the trialcourt, which will not be interfered with unless abused. The exact limits, either of similarity or difference, or of nearness or remoteness inpoint of time, 

### is difficult, if not impossible, toprescribe by any arbitrary rule, but must to a large extent depend on the location and the character of the property and the circumstance of the case. It 

### is tobe considered with reference to the light thrown on the issue, and not as amere method of raising a legalpuzzle.

## "' Finally, the verdict of thejury in this case 

### isnot out of proportion to the injury to defendant. This Court has followed the rule that in eminent domain proceedings the jury verdictwill not be disturbed on appeal unless it 

### is out of proportion to the injury done. StateHighway Commission 

### v. Manry, 143Mont. 382,

The judgment of the district court 

### isaffirmed.

District Judge, sittingfor 

### Mr. Chief Justice James T. Harrison.

### We Concur:

Justices.