No. 13080 

IN THE 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 

Qouglas Skjelset 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 for Mr. Chief 

Justice James T. Harrison, delivered the Opinion of the Court: 

The state of Montana by and through the department 

oi highways, brought condemnation proceedings in the district 

court, Ravalli County, against Clyde Schreckendgust for two 

parcels of land. Defendant answered and counterclaimed asking 

for damages in the 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 a jury verdict of $29,600 and 

defendant appealed to this Court. 

Involved is condemnation of 9.6 acres out of a tract of 

land of 24.14 acres referred to as parcel 6, which lies near 

Florence, Montana. The 24.14 acres had been surveyed and platted 

into lots in 1967 but the plat was never filed. Immediately 

adjacent to the 24.14 acre tract was 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 in parcel 6 and adding 

an increment of $1,000 for size. 

Defendant alleges the trial court 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-examination of the state's expert, of comparable commercial sales of property. 

With reference to the first alleged error, the record 

discloses defendant called two appraisal witnesses, Charles Fricke 

and Roy Rodenberger. Fricke testified that he based his opinion 

of value on the basis of building sites and was permitted, over 

objection, to state that in his opinion the per acre value of 

the land was $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 court would not permit him to use comparable 

sales located in an existing subdivision because the property 

sought to be condemned was not in an existing subdivision. In 

the refusal to allow testimony of comparable sales in an existing 

subdivision, we note 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 $6,867 per acre. 

Consequently, appraiser Fricke was permitted to testify 

as to the land's value for building sites at $10,500 per acre 

and appraiser Rodenberger was permitted to testify to the same 

value of $6,867 per acre for "residential sales or lots" as 

stated in his 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 there was manifest abuse of that 

discretion. In United States v. 55.22 Acres of Land, Etc., Yakima 

Co., Wash., 411 F.2d 432, 434, the Ninth Circuit Court of Appeals 

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 

discretion by the trial court, and the ruling thereon 

is reviewable only for an abuse of discretion. 

United States v. Eden Memorial Park Association, 

9 Cir., 350 F.2d 933, 935." 

~'SL See: United States v. &, 442 F.2d 1325 (1971). 

The Illinois Supreme Court, in City of Chicago v. Blanton, 

15 I11.2d 198, 154 N.E.2d 242,244,245, considered the exclusion 

of an alleged comparable sale by the trial court. In affirming 

that court's ruling, it held: 

"* * * No general rule can be laid down regarding 

the degree of similarity which 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 constantly changing, the admission 

of such proof rests largely in the discretion of the 

trial court, and its decision will be reversed only 

where such discretion has been clearly abused." 

See: Salt Lake County v. Kazura, 22 Utah 2d 313, 452 P.2d 869; 

State v. Rowley, 74 Wash.2d 328, 444 P.2d 695; Adams v. City of 

Atlanta, 122 Ga.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, 214 N.E.2d 721; Nonni v. Commonwealth, 356 Mass. 264, 

249 N.E.2d 644. 

The general rule is that evidence of sales may be introduced as long as they are truly comparable. This Court, in State 

Highway Comm'n v. Churchwell, 146 Mont. 52,60, 403 P.2d 751, said: 
"* * * Concerning the admission of evidence, 

either of value before or after the taking, the 

problem is one of comparability or similarity. 

In this case as hereinafter 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 sale as 

against the appellants' allegation that theirs 

was platted land." 

This follows the general rule that sales of platted land should 

not be used to value land that is unplatted, especially in situations were there is evidence of sales of unplatted land in the 

area. 

In Waukegan Park Dist. v. First National Bank of Lake 

Forest, 22 I11.2d 238, 174 N.E.2d 824,827, the Illinois Supreme 

Court held the trial court 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 is unsubdivided. 

The testimony sought to be introduced related to 

property which had been subdivided into lots. .It 

is well established that the latter is not similar to 

unsubdivided or acre property and that the price of 

such lots is not relevant in fixing the value of 

property such as that in the cases at bar." 

State Road Commission v. Ferguson, 148 W.Vir.742, 137 

S.E.2d 206, 211, involved the condemnation of 10.22 acres of 

land for highway purposes. During the trial of the case the 
trial court pe~mitted a witness to testify as to the prices 

of lots in an existing subdivision. The West Virginia Supreme 

Court held this was error, noting: 

" * * In the instant case, Mr. Canterbury testified about a lot which was sold from an existing subdivision. The property involved in th& proceeding is 

a tract of land of approximately eleven acres. There 

is no similarity whatever between the two. If this 

evidence were allowed the jury would be required to 

investigate collateral issues, such as the many items 

of cost which necessarily would be incurred to convert 

the subject property into lots. This could lead only 

to confusion and cause the jury to engage in speculation and conjecture. 

1 I Pertinent to the instant proceeding, many courts 

have held that evidence of the value of platted or 

subdivided land is not admissible to prove the value 

of acre or unplatted property. Holding such evidence 

inadmissible, the Court, in City oi Chicago v. Pridmore, 

et al., 12 I11.2d 447, 147 N.E.2d 54, commented as 

follows: 'This court has consistently held that property which has been subdivided into lots is not 

similar to or similarly conditioned as unsubdivided or 

acre property.' See Annotation, 85 A.L.R. 2d 110, at 

p. 139, et seq., and cases cited therein. 11 

The Colorado Supreme Court, in Department of Highways v. 

Schulhoff, 167 Col. 72, 445 P.2d 402,407, considered the admissibility of lot sales in an eminent domain action where the property sought to be 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 trial court, holding: 

"In passing on the degree of comparability of the 

sales which the Schulhoffs attempted to introduce 

into evidence to Parcel No. 320, the trial court 

correctly ruled: 

"'* * * the Court does not consider platted subdivisions, which likely have streets, possibly 

alleys and curbs and gutters, paved streets, 

utilities, grading and other matter which are usually 

in subdivisions, comparable to the property in question 
in this case, and therefore refuses to permit 

testimony as to the value of these lots, even 

though they are called comparable lots. 

"I* * * there are so many elements in subdivisions 

that aren't in unimproved property that it is 

difficult to evaluate or compare the two. ' 

"The authorities support the trial court's ruling. 

We quote with approval the following language of 

the court in State Roads Commission v. Wood, 207 

Md. 369, 114 A.2d 636, apropos of the general rule: 

" '* * *he vice in comparing subdivided land and 

unsubdivided land lies in the fact that the comparison 

is between a wholesale and a retail price 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 rule was reaffirmed by the Colorado Supreme Court in 

Board of County Com'rs v. Vail Associates, Ltd.,l71 Co1.381, 

Here, the transcript reveals there was testimony at the 

trial of comparable sales of undivided property in the area of 

the condemned land. The trial court 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 in regard to taxes on the property and the non-dedication 

of such land to the public. 

Lot sales in an 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 to the subdivider; (3) selling expenses such as commissions and advertising, and for hold-expenses such as taxes, 

and interest costs on the unsold land. 
These costs have - not been incurred by the person who 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-examination of the state's experts concerning 

the sale of comparable commercial property. A reading of the 

transcript indicates the court did not restrict the cross-examination. 

The only objection to any cross-examination was when 

defendant attempted to question a witness for the state about 

the sale from defendant to Bell McCall Company. The witness 

testified he did not know the answer to the question. Defendant 

then attempted to premise the question with the answer he wanted 

from the witness. An objection was made to this on the ground 

that the witness 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 question with the answer as a premise. In any event 

the question was withdrawn by defendant. 

The state made no objection to the cross-examination of the 

state's second appraisal witness and consequently the court did 

not restrict the cross-examination of the state's witnesses by 

defendant. 

Defendant also alleges the court refused in his direct 

examination to allow him to place a dollar value concerning 

sales of commercial property. The question here is whether or not 

the trial court abused its discretion in its ruling. 
At the trial Rodenberger 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 to Bell McCall Company. The court ruled that this 

sale was covered by a stipulation previously entered into by 

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 sale was for commercial 

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 in his 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 objection was sustained by the trial court. 

Defendant made another offer of proof which was denied. 

The state made a motion in limine prior to trial requesting an order prohibiting defendant or his attorney or 

witnesses from making 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 6 
in this case. They are not comparable in size. The state's 

witnesses testified the property was not comparable because 

it was project influenced, it was too small and it was a service 

station sale. There was no error in the court's ruling. 

In Montana Power Company v. Wolfe, Mont . Y 

545 P.2d 674, 33 St.Rep. 172, 174, this Court said: 

"* * * Yet it is well established that appellate 

review of comparable sale evidence admitted by the 

district court is limited. 5 Nichols 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 to make such evidence admissible. It 

must necessarily vary with the circumstances of 

each particular case. Whether the properties are 

sufficiently similar to have some bearing on the 

value under consideration, and to be of any aid 

to the jury, must necessarily rest largely in the 

sound discretion of the trial court, which will 

not be interfered with unless abused. The exact 

limits, either of similarity or difference, or of 

nearness or remoteness in point of time, is difficult, if not impossible, to prescribe 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 to be considered with 

reference to the light thrown on the issue, and 

not as a mere method of raising a legal puzzle. "' 

Finally, the verdict of the jury in this case is not out 

of proportion to the injury to defendant. This Court has followed 

the rule that in eminent domain proceedings the jury verdict will 

not be disturbed on appeal unless it is out of proportion to the 

injury done. State Highway Commission v. Manry, 143 Mont. 382, 

The judgment of the district court is affirmed. 

District Judge, sitting for 

Mr. Chief Justice James T. 

Harrison. 
We Concur: 

Justices.