                                        No. 12562

          I N THE SUPRENE COURT O THE STATE O M N A A
                                 F           F OTN

                                          1973



STATE OF MONTANA, A c t i n g by and Through
t h e S t a t e F i s h and Game Commission and
Members t h e r e o f ,

                             Petitioner,



DISTRICT COURT O THE FIFTH JUDICIAL DISTRICT
                F
O THE STATE O M N A A I N AND FOR THE C U T
 F            F OTN                     O NY
OF MADISON and HON. FRANK E. BLAIR, Judge t h e r e o f ,

                            Respondents.




ORIGINAL PROCEEDING:

    Counsel o f Record:

            For P e t i t i o n e r :

                    C l a y t o n Herron a r g u e d , Helena, Montana

            F o r Respondents:

                    C o r e t t e , Smith and Dean, B u t t e , Montana
                    Kendrick Smith a r g u e d , B u t t e , Montana

                                                         --




                                                    Submitted:    September 26, 1973

                                                      Decided :   DEC 12 1973
Filed :    WC 1 2 1973
           - **
Honorable LeRoy L. McKinnon, District Judge, sitting in place of
Mr. Justice John Conway Harrison, delivered the Opinion of the
Court.
         This is an original proceeding wherein the State Fish
and Game Commission, plaintiff in district court, brought this
petition for an appropriate writ to control the actions of the
district court.
         The petitioner is seeking to condemn certain property
known as "Beaverhead Rock" for use as a state historical site.
In 'state of Montana, acting by and through the State Fish and
Game Commission and the members thereof, Plaintiff, vs. Norman
G. Ashcraft and Loretta Gay Ashcraft, Husband and Wife, as joint
tenants; Harvey Robson, a single man; Vigilante Electric Cooper-
ative Inc., a Montana corporation; and United States of America,
acting by and through the Administrator of the Farmers Home Ad-
ministration, Defendants; Cause No. 6242, now pending in the
district court of the fifth judicial district of the State of
Montana in Madison County, after the complaint and the answer had
been filed, and while discovery was underway, the defendants
petitioned the district court for an order allowing the use of
certain specified sales as comparable sales in any valid appraisal
by an expert.   This motion was supported by an affidavit sworn
to by one of defendants' attorneys.        The court, after argument
of counsel, granted the motion, entered its order and the State
now seeks this writ.     It should be noted that the order was
entered July 7 and this action taken on July 24, 1973.        In the
interim the defendants have employed an expert who has prepared
an appraisal based on the usability of the sales as comparable
sales.
         An issue is raised as to whether this Court should accept
jurisdiction.     In Union B.   &   T. Co. v. State Bk. of Townsend,
103 Mont. 260, 270, 62 P.2d 677, this Court said:
          "The district court has sufficient control
          over its proceedings to so regulate them
          that the rights of parties may be settled
          once and for all and as expeditiously as
          possible. And in its supervisory capacity,
          this court has the right to direct the dis-
          trict court to so proceed as to accomplish
          that purpose. In Zunchich v. Security
          Building & Loan Assn., 85 Mont. 341, 278 P.
          1011, this court declared that the purpose
          of section 9087, Revised Codes, was to
          expedite litigation and afford protection to
          both persons and property involved in
          litigation."
          Here, the expeditious settling of rights would require
correct procedure, and to that end this Court will accept
jurisdiction.
          The order complained of appears to be somewhat ambiguous
in that it receives different interpretations by the parties
hereto.     It states in effect that certain designated sales may
be used as comparable sales in the trial of this matter in any
valid appraisal by an expert.    The petitioner construes this to
mean that the designated sales may be used in evidence of value
without first laying a foundation to show admissibility.     The
respondent court argues that it means they may be used if a proper
foundation is laid.
          The rule is stated in State Highway Comm'n v. Greenfield,
145 Mont. 164, 169, 399 P.2d 989:
          " * * * The party calling such expert witness
          must also satisfy the trial court that the
          sales were recent, in the vicinity,'and involv-
          ing&nd comparable to the land in issue."
          These conditions, as applicable to the facts, must be
met before it can be determined that the expert witness may use
the designated sales as comparable sales to establish value.       A
determination that evidence of any certain sale of property is
admissible in this case to help determine value is premature prior
to trial.    At the time of trial counsel may present his expert
witness and attempt to lay a sufficient foundation for the evidence
he proposes.     The trial judge shall then rule on the question
of admissiiil.ity,
        The value to be determined is the fair market value.            If
historic significance in fact enhances the fair market value,
the landowner, of course, is entitled to that enhanced value.
                                 i n ~ /a e d
                                        o
The fact that other sales -property                  having historic
significance is not sufficient foundation, standing alone, to
admit such sales as comparable to the property here involved.
        Objection is made also that the application was not
timely filed subsequent to the district court order dated July
7, 1973.    The application for writ bears a filing date of July
24, 1973.   We find no unreasonable delay.
        The district court is instructed to proceed in accord
with the views expressed herein.




                                       Judge, sitting in place of Mr.
                                       Justice John C. Harrison.




   ief' Justice      /
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