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Alexander v. State

381 P.2d 780, 142 Mont. 93, 1963 Mont. LEXIS 77
CourtMontana Supreme Court
DecidedMay 16, 1963
Docket10491
StatusPublished
Cited by20 cases

This text of 381 P.2d 780 (Alexander v. State) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alexander v. State, 381 P.2d 780, 142 Mont. 93, 1963 Mont. LEXIS 77 (Mo. 1963).

Opinions

ME. CHIEF JUSTICE JAMES T. HAEEISON

delivered the Opinion of the Court.

This is an appeal from a judgment entered upon a jury verdict in the district court of Mineral County.

It appears that in January of 1959 the State of Montana purchased certain real property in Mineral County from the owners. Upon the tract of land purchased there was a cement batching plant owned by the plaintiff. Following purchase of the land a dispute arose between plaintiff and the State Highway Commission as to whether or not plaintiff had an interest in the land for which defendant State was obligated [95]*95to reimburse him. In June of 1960, the defendant State brought a quiet title action concerning the real property and plaintiff was joined as a defendant. Following trial of that case it was adjudged that the State was the owner of the property “subject to a claim against said property in favor of Dee W. Alexander in the amount of the fair market value of the concrete mixing plant as it existed on said property as of June 1, I960.”

Following entry of that judgment the plaintiff filed this action and set up two causes of action in his complaint. The first was based upon a constructive trust theory under section 86-210, R.C.M.1947; the second based upon the judgment in the quiet title action hereinbefore referred to. Upon the trial the jury returned a verdict for the plaintiff in the sum of $24,500 and this appeal followed.

We shall comment briefly upon the contentions of defendant raised by its first specification of error. The State contends that it is immune to suit without its consent having been given, and argues that plaintiff should have proceeded under section 82-1113, R.C.M.1947, by presenting a claim to the State Board of Examiners.

Art. 3, § 14 of the Constitution provides:

“Private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court for the owner.”

This constitutional provision was before this court in Less v. City of Butte, 28 Mont. 27, 72 P. 140, 61 L.R.A. 601, 98 Am.St.Rep. 545, and the court stated:

“* * * It seems very clear to us that this section was drafted in the broad language stated for the express purpose of preventing an unjust or arbitrary exercise of the power of eminent domain. It overturns the doctrine that one owning city or town property must continually live in dread of the changing whims of successive boards of aldermen. * * *
“* * * As to whether the appellant is liable ‘under the [96]*96laws (statutes) of Montana in force at the time’ is wholly immaterial. Section 14, Art III, of the Constitution, is both mandatory and prohibitory. It is self-executing and requires no legislation to rouse it from dormancy. Searle v. City of Lead, 10 S.D. 312, 73 N.W. 101, 39 L.R.A. 345; Hickman v. City of Kansas, 120 Mo. 110, 25 S.W. 225, 23 L.R.A. 658, 41 Am. St.Rep. 684; Harmon v. City of Omaha, 17 Neb. 548, 23 N.W. 503, 52 Am.Rep. 420. * * *
“We think the operation of this section of the Constitution ought not to be restricted. The declarations of constitutions are placed therein to be obeyed, and are not to be ‘frittered away by construction.’ In McElroy v. Kansas City (C.C.) 21 Fed. 257, Mr. Justice Brewer, in passing upon a similar constitutional provision, said: ‘I think, too, in these days of enormous property aggregation, where the power of eminent domain is pressed to such an extent, and when the urgency of so-called public improvements rests as a constant menace upon the sacredness of private property, no duty is more imperative than that of the strict enforcement of these constitutional provisions intended to protect every man in the possession of his own. * * * Such constitutional guaranty needs no legislative support, and is beyond legislative destruction.’ ”

No purpose would be served to cite cases decided through the intervening years to the same effect, suffice it to say that this interpretation has remained the law of Montana. There is no merit to this contention of the defendant, and the cause was properly before the court.

The State contends that certain instructions given were erroneous and others refused should have been given. We have examined the instructions as a whole and it appears that the jury were fairly and properly instructed. We shall hereafter further comment on one instruction.

Finally the State contends that the verdict of the jury is not supported by the evidence. We shall give a resume of the plaintiff’s evidence as to value.

[97]*97The plaintiff and one Basil Hunt testified as to the value of the plant. The plaintiff on direct examination testified that he would have considered selling the plant but not for less than $35,000; that such amount was the value he placed on it. On cross-examination he testified that he thought it would cost $15,000 to reproduce the structure, sometimes qualifying this figure to materials alone, other times not. He admitted certain motors in the plant were returned to him and the court instructed the jury that it should determine the reasonable value of any property that was salvaged and returned to plaintiff and deduct such amount from the fair market value of the plant as it existed June 1, 1960. However, no testimony was offered or received from which any value of property salvaged could be determined.

Basil Hunt testified he had never made an appraisal of a concrete plant before this one, though he exhibited experience in the concrete manufacturing business, had operated two plants on his own and had designed and built such plants. He had come into the Superior area on behalf of the general contractors for certain bridge work to provide a source of ready-mix concrete for them.

He had a firm opinion of what it would cost to replace the plant. When queried as to whether he had a figure that he would be willing to offer plaintiff for the plant he stated he did and he had it here in his hand. He later referred to this as an estimate which he stated was $35,019. Describing how he arrived at that figure he stated the purpose was of taking what was in the plant and putting it up somewhere where it could be operated; that he would be forced to change the design somewhat and as far as the purpose its accomplishments would be equal, or better. He stated the figures represented what you need in the way of a plant and was based on others that he put together. One of the items covered a cement storage warehouse 20' by 40' with load dock. When questioned that there was no cement storage warehouse on the plaintiff’s [98]*98property lie stated: “No, but there would be one when we get it ready.” His estimate sheet was marked as an exhibit and offered by the plaintiff and was received by the court over the objection of the defendant that it included items which were not even on the property, that it was an appraisal of some other property, no proper foundation, irrelevant, immaterial and incompetent for the purposes of the trial. This exhibit reads:

“Batch Plant 100 to 150 yd. capacity
“1. Site preparation, grading. $ 465.
“2. Slab for work area, 50 x 60 1,420.
“3. Concrete retaining wall 18' x 50' x 12 2,100.
“4. Water line and stand and well. 4,320.

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Bluebook (online)
381 P.2d 780, 142 Mont. 93, 1963 Mont. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alexander-v-state-mont-1963.