                                      No. 12633

          I N THE SUPREME C U T O T E STATE O MONTANA
                           OR    F H         F

                                          1974



T E STATE O M N A A ACTING BY
 H         F O T N ,
AND THROUGH T E STATE HIGHWAY
             H
COMMISSION O THE STATE OF M N A A
            F               O T N ,

                              P l a i n t i f f and A p p e l l a n t ,



JOHN R. COOPER and DONNA C. COOPER,
husband and w i f e , THE FEDERAL LAND BANK
O SPOKANE, and CLYDE J SULLIVAN and
 F                                   .
MARY E. SULLIVAN, husband and w i f e ,

                              Defendants and Respondents.



Appeal from:        D i s t r i c t Court of t h e S i x t h J u d i c i a l D i s t r i c t ,
                    Honorable Nat A l l e n , Judge p r e s i d i n g .

Counsel of Record:

    For A p p e l l a n t :

            K. M. B r i d e n s t i n e argued, Helena, Montana
            Harry A l l e y a ~ p e a r e d ,Helena, Montana

    For Respondents :

            C o r e t t e , Smith and Dean, B u t t e , Montana
            Kendrick Smith argued, B u t t e , Montana
            Dolphy 0. Pohlman, Jr. argued, B u t t e , Montana



                                                  Submitted:          March 20, 1974

                                                     Decided :       A ~ R 8 1974
                                                                         1
Filed :        1 8 1974
Mr.   J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion o f t h e C o u r t .

             T h i s i s a n a p p e a l by t h e S t a t e Highway Commission from a

judgment r e n d e r e d p u r s u a n t t o a j u r y v e r d i c t i n an a c t i o n i n emi-

n e n t domain b r o u g h t i n t h e d i s t r i c t c o u r t of Sweet G r a s s County,

Judge Nat A l l e n p r e s i d i n g .      The S t a t e i n s t i t u t e d t h e a c t i o n t o

condemn 12.6 a c r e s of r e s p o n d e n t s ' l a n d f o r c o n s t r u c t i o n of a

c o u n t y s e c o n d a r y r o a d of .9 m i l e s i n l e n g t h .    The judgment awarded

t h e sum of $13,000 f o r t h e l a n d a c q u i r e d p l u s $27,050 f o r d e p r e c -

i a t i o n t o t h e remainder and i s a p p e a l e d f o l l o w i n g t h e t r i a l c o u r t ' s

d e n i a l of a motion f o r a new t r i a l .

             The a c r e a g e t a k e n by t h e S t a t e from r e s p o n d e n t s c o n s i s t e d

of mixed g r a z i n g and hay l a n d and c a b i n s i t e s a l o n g t h e r i v e r .

The r o a d i n q u e s t i o n i s known as t h e Boulder R i v e r McLeon Road,

a c o u n t y r o a d , and t h e p r o j e c t was t o t i e i n two segments of t h e

county road.          The a c q u i s i t i o n t r a c t i s a s t r i p of l a n d some 1 7 0 '

i n w i d t h and .9 m i l e s i n l e n g t h .       P a r t of t h e c o n s t r u c t i o n i n v o l v -

ed i r r i g a t i o n l a t e r a l s and c a n a l s w i t h c u l v e r t s and a b r i d g e o v e r

t h e w e s t f o r k Boulder R i v e r .

             The respondent, S u l l i v a n , owned t h e l a n d i n v o l v e d u s i n g it

i n c o n n e c t i o n w i t h s e v e r a l thousand o t h e r a c r e s a s p a r t of h i s

c a t t l e business.        He h a s been i n t h e c a t t l e b u s i n e s s i n Montana
f o r 40 years, operating s e v e r a l ranches p r i o r t o acquiring h i s
p r e s e n t r a n c h f o r r a i s i n g p u r e b r e d c a t t l e i n 1968. The a n i m a l u n i t

c a p a c i t y of t h e r a n c h p r i o r t o t h e S t a t e ' s a c q u i s i t i o n was approx-
i m a t e l y 200 head.       S u l l i v a n t e s t i f i e d t h a t t h e l o s s of t h e 12.6

a c r e s of l a n d when f i g u r e d on a b a s i s o f l o s s o f hay a l o n e i n
a n n u a l u n i t s would come t o a p p r o x i m a t e l y $22,680, p l u s t h e r i v e r
f r o n t a g e l o t d e p r e c i a t i o n l o s s of some $31,680.
             I n p r e p a r i n g f o r t h e t r i a l t h e S t a t e e l e c t e d t o go w i t h
j u s t one a p p r a i s e r , James Brown, who had done t h e i r a p p r a i s a l work

i n t h e Sweet G r a s s a r e a .       On F r i d a y , w i t h t h e t r i a l s e t f o r Monday,
the State was notified by Brown's doctor that Brown was suffer-
ing from a serious eye disease (glaucoma) and would not be able
to testify.      Suitable affidavits and motions were prepared and
filed and on Monday at the trial the State requested a continuance
until another appraisal could be made.        This request was refused
but an agreement was made between counsel of both sides that
~ruastine,appellant's counsel, could read Brown's testimony to
the jury and could explain said testimony by referring to a list
of "comparative sales", maps and photographs all prepared or taken
by Brown.     In addition the State was allowed to update Brown's
figures and offer more compensation than was in his original report.
In addition two witnesses employed by the State testified, one,
Dennis Williams, division construction engineer, and James T. Sulli-
van, a former division engineer.        Williams was called as an adverse
witness by respondents and he testified as the State's surrebuttal
witness.
           Three value witnesses testified in the case, two for
respondent and one for the State.        Clyde Sullivan, the owner and
respondent, testified that the total just compensation was $129,320;
Norm Starr gave the figure of $127,316; and Brown's figure was
$15,101.83.      The jury verdict was for the landowners at $40,050.
The breakdown of that verdict was $13,000 for the 12.6 acres taken
and $27,050 for depreciation.
       At the close of the case for the State counsel asked the
court to arrange for a jury view of the land to be taken and after
questioning the jury, most of whom knew the land in question, the
court denied the State's request.
           Four issues are presented for our consideration:
           (1)   The court abused its discretion by refusing plaintiff's
motion for continuance for the reason plaintiff's only expert value
witness could not attend the trial for health reasons, and that this
                                - 3 -
p r e v e n t e d p l a i n t i f f from h a v i n g a f a i r t r i a l of t h e m e r i t s o f

t h i s cause;

              (2)     The v e r d i c t i s t h e r e s u l t of p a s s i o n and p r e j u d i c e
f o r d e f e n d a n t s and a g a i n s t p l a i n t i f f , b r o u g h t a b o u t by a b s e n c e

of a v a l u e w i t n e s s on t h e p a r t of p l a i n t i f f ;

              (3)     The c o u r t i m p r o p e r l y d e n i e d p l a i n t i f f ' s motion f o r

view of t h e p r e m i s e s i n t h e a b s e n c e of a v a l u e w i t n e s s on t h e

p a r t of p l a i n t i f f ; and

              (4)    The c o u r t abused i t s d i s c r e t i o n i n r e f u s i n g t o g r a n t

a new t r i a l t o p l a i n t i f f .

             W e f i n d no m e r i t t o i s s u e one.           The c o n t r o l l i n g s t a t u t e ,

s e c t i o n 93-4910,      R.C.M.      1947, g o v e r n s t h e postponement o r t h e con-

t i n u a t i o n of a t r i a l .

             "Motion t o p o s t p o n e a t r i a l f o r a b s e n c e of t e s t i m o n y
             r e q u i s i t e s o f . A motion t o ~ o s t w o n ea t r i a l on
             grounds of t h e a b s e n c e of e v i d e n i e s h a l l o n l y be
             made upon a f f i d a v i t showing t h e m a t e r i a l i t y of t h e
             e v i d e n c e e x p e c t e d t o be o b t a i n e d , and t h a t due d i l i -
             gence h a s been used t o p r o c u r e i t . The c o u r t may
             a l s o r e q u i r e t h e moving p a r t y t o s t a t e , upon a f f i -
             d a v i t , t h e e v i d e n c e which he e x p e c t s t o o b t a i n , -and
             i f t h e adverse p a r t y thereupon admits t h a t such
             e v i d e n c e would be q i v e n , and t h a t i t be c o n s i d e r e d
             a s a c t u a l l y g i v e n on t h e t r i a l , o r o f f e r e d and
             o v e r r u l e d a s improper, t h e t r i a l s h a l l n o t be p o s t -
             poned; and upon t e r m s t h e c o u r t may, i n i t s d i s -
             c r e t l o n , upon good c a u s e shown, and i n f u r t h e r a n c e
             of j u s t i c e , p o s t p o n e a t r i a l o r p r o c e e d i n g upon
             o t h e r grounds t h a n t h e a b s e n c e o f e v i d e n c e . "
              (Emphasis s u p p l i e d . )

             A s noted i n t h e underlined s e c t i o n s of t h e s t a t u t e t h i s

i s a d i s c r e t i o n a r y s t a t u t e , and i n view o f t h e f u l l and c o m p l e t e

a d m i s s i o n , w i t h o u t c r o s s - e x a m i n a t i o n by d e f e n d a n t , made by t h e

r e s p o n d e n t s we f i n d no a b u s e of t h e t r i a l c o u r t ' s e x e r c i s e of
t h a t power.       T h i s c a s e began i n J u l y 1970 and a l m o s t 3 y e a r s
p a s s e d b e f o r e t h e d a t e o f t r i a l was s e t i n May, 1973.                This is
a r u r a l c o u n t y where t r i a l c a l e n d a r s a r e k e p t a t a minimum, and

w i t h a n o u t of d i s t r i c t judge c a l l e d t o s i t , w i t h t h e j u r y on hand

t h a t Monday and t h e a d m i s s i o n s i n Brown's t e s t i m o n y , i n o u r o p i n i o n
the State suffered no prejudice in the denial of a continuance.

           The appellant State relies heavily on our holding in
Dean v. Carter, 131 Mont. 304, 309 P.2d 1032.    The Court in Dean
did reverse and grant a new trial, but the case is not the factual
situation we have here.    There the adverse party would not allow
the admittance of the evidence, as was done here.
           This Court in a number of opinions has interpreted section
93-4910, R.C.M. 1947, and in each we have looked at the circum-
stances in considering whether or not there has been an abuse of
discretion.    See Orem v. Hansen Packing Co., 91 Mont. 222, 7 P.2d
546; Adams v. Misener, 113 Mont. 559, 131 P.2d 472; Ward v. Strowd,
76 Mont. 93, 244 P. 1007.
         The next issue raises the question of whether the verdict
is the result of passion and prejudice directed against the high-
way department.    Was it a hometown decision as charged?   We think
not!   Contrary to defendant's argument in brief, rural small
counties are not the most liberal areas for dispensing governmental
largess.    Involved here was a taking that complicated the use of
respondents' irrigation system, winter feeding and hay crop.      A

rural jury heard the evidence and in all probability understood
its totality of impact on the ranch operations far better than a
jury composed of urban members.    However that may be we find the
State argument has not demonstrated any passion or prejudice and
as a matter of fact the jury awarded damages closer to the State's
figure than to the respondents. We find this issue without merit.
        We next consider whether the trial court erred in deny-
ing the State's request for the jury to view the land'involved.
The appellant State argues that under the particular circumstances
of the case it was of great import that the jury view the premises,
particularly in view of the testimony, as it concerned the culverts,
bridges, irrigation canals and the river area.    In support of its
position the appellant cites and relies on the holding of this
Court in the cases of State v. Lee, 103 Mont. 482, 63 P.2d 135,
and State v. Bradshaw Land Etc. Co., 99 Mont. 95, 43 P.2d 674.
See also Clark V . ~orral/,
                          146 Mont. 374, 406 P.2d 822; Puetz v.
Carlson, 139 Mont. 373, 364 P.2d 742.        Appellant acknowledges
that both of the cases cited set forth the principle that allow-
ing the jury to view the premises is discretionary and in view
of the evidence submitted at trial we find no error in the court's
denial of appellant's motion.         Ten of the jury, when asked whether
they were familiar with the property, answered in the affirmative.
In addition, the jury had before them the exhibits, which showed:
a right-of-way map; nineteen photographs of the property; and
an enlarged aerial photograph.
        All of these exhibits were effectively used by counsel
on both sides of the case and the jury indicated that it thorough-
ly understood the fact problem in the case.        We do not believe
that the two cases above cited are applicable to this case and
find no merit to this issue.
        The last issue raised the question of whether the trial
court abused its discretion in refusing to grant a new trial to
the State.   We have carefully reviewed all the evidence and ex-
hibits of the case and find no abuse of discretion.
        Finding no reversible error, the judgment is affirmed.
                                      n

                                                  Justice
We concur:
             '/
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 Chief ust tide




 Justices
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