State v. Schreckendgust

Montana Supreme Court

State v. Schreckendgust

Montana Supreme Court·Decided June 28, 1976·No. 13080·Published

Opinion

No. 13080

I N THE SUPREME COURT OF THE STATE OF M N A A OTN

THE STATE OF M N A A ACTING BY AND OTN

THROUGH THE DEPARTMENT O HIGHWAYS

F

OF THE STATE O MONTANA,

F

P l a i n t i f f and Respondent,

CLYDE SCHRECKENDGUST , J R . a /k /a CLYDE SCHRECKENDGUST ,

Defendant and A p p e l l a n t .

A p p e a l from: 9 i s t r i c t Court of t h e F o u r t h J u d i c i a l D i s t r i c t , Honorable Edward D u s s a u l t , Judge p r e s i d i n g .

Counsel of Record:

For Appellant :

Tipp and Hoven, M i s s o u l a , Montana Qouglas S k j e l s e t a r g u e d , M i s s o u l a , Montana

D a n i e l J. S u l l i v a n and James Beck, Helena, Montana James Beck a r g u e d , Helena, Montana

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Submitted: A p r i l 20, 1976

Decided :

;! ,' 310

Filed:

Hon. M. James S o r t e , D i s t r i c t Judge, s i t t i n g f o r M r . Chief J u s t i c e James T . H a r r i s o n , d e l i v e r e d t h e Opinion of t h e Court:

The s t a t e of Montana by and through t h e department o i highways, brought condemnation proceedings i n t h e d i s t r i c t c o u r t , R a v a l l i County, a g a i n s t Clyde Schreckendgust f o r two p a r c e l s of land. Defendant answered and counterclaimed a s k i n g f o r damages i n t h e sum of $125,250. A commission h e a r i n g r e s u l t e d i n an award of $62,356. An a p p e a l by t h e s t a t e of Montana t o t h e d i s t r i c t c o u r t r e s u l t e d i n a j u r y v e r d i c t of $29,600 and defendant appealed t o t h i s Court.

Involved i s condemnation of 9.6 a c r e s o u t of a t r a c t of land o f 24.14 a c r e s r e f e r r e d t o a s p a r c e l 6 , which l i e s n e a r F l o r e n c e , Montana. The 24.14 a c r e s had been surveyed and p l a t t e d i n t o l o t s i n 1967 b u t t h e p l a t was never f i l e d . Immediately a d j a c e n t t o t h e 24.14 a c r e t r a c t was a n o t h e r t r a c t owned by d e f e n d a n t ' s c o r p o r a t i o n and known a s F o r e s t View E s t a t e s , Unit 1, which had been p l a t t e d and a l s o f i l e d .

A t t h e south end of t h e 24.14 a c r e p a r c e l t h e r e was a n o t h e r p a r c e l of land owned by defendant and condemned i n t h i s a c t i o n , c o n t a i n i n g 1.6 a c r e s of land r e f e r r e d t o a s p a r c e l 5. The s t a t e ' s a t t o r n e y s e n t e r e d i n t o a s t i p u l a t i o n w i t h defendant t h a t provided t h e v a l u e of t h e 1 . 6 a c r e s ( p a r c e l 5) would be computed by m u l t i p l y i n g p e r a c r e a g e p r i c e determined i n p a r c e l 6 and adding an increment of $1,000 f o r s i z e .

Defendant a l l e g e s t h e t r i a l c o u r t e r r e d i n two r e s p e c t s :

(1) The c o u r t d i d n o t allow d e f e n d a n t ' s a p p r a i s e r s t o t e s t i f y on v a l u e of t h e condemned l o t s compared t o p l a t t e d sub- d i v i s i o n 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."

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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 intro-

duced 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 t h e admission of evidence, e i t h e r of v a l u e b e f o r e o r a f t e r t h e t a k i n g , t h e problem i s one of c o m p a r a b i l i t y o r s i m i l a r i t y .

I n t h i s case a s h e r e i n a f t e r pointed out the f a c t s do n o t make a c a s e f o r s i m i l a r i t y o r comp a r a b i l i t y . See Vol. 85 A.L.R.2d, pages 130 t o 163 . I '

I n Churchwell t h i s Court acknowledged t h a t p l a t t e d land was n o t comparable t o raw l a n d :

"The Sprunger p r o p e r t y was an a c r e a g e s a l e a s against the appellants' allegation t h a t t h e i r s was p l a t t e d land."

This follows t h e g e n e r a l r u l e t h a t s a l e s of p l a t t e d l a n d should

n o t be used t o v a l u e l a n d t h a t i s u n p l a t t e d , e s p e c i a l l y i n s i t u a -

t i o n s were t h e r e i s evidence of s a l e s of u n p l a t t e d land i n t h e

area.

I n Waukegan Park D i s t . v . F i r s t N a t i o n a l Bank of Lake

F o r e s t , 22 I11.2d 238, 174 N.E.2d 824,827, t h e I l l i n o i s Supreme

Court h e l d t h e t r i a l c o u r t p r o p e r l y s t r u c k t h e testimony of t h e

landowner's a p p r a i s e r because he r e f e r r e d t o s a l e s i n s u b d i v i s i o n s

and s a i d :

If* ** There was no e r r o r i n s t r i k i n g t h e t e s t i -

mony. The p r o p e r t y involved i n t h e p r e s e n t proceedings i s a c r e a g e p r o p e r t y which i s unsubdivided.

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