                           No. 80-438
         IN THE SUPREME COURT OF THE STATE OF MONTANA




THE COUNTY OF McCONE, STATE OF
MONTANA, and the TOWN OF CIRCLE,
MONTANA, acting by and through
THE TOWN OF CIRCLE-COUNTY OF
McCONE JOINT AIRPORT BOARD, a
Public Agency,
                              Plaintiffs and Respondents,
         VS.

MATTHEW E. JAMES and JUDITH A.
JAMES, husband and wife, with a
mortgage held by the UNITED STATES
DEPARTMENT OF AGRICULTURE,
                              Defendants and Appellants.


Appeal from:   District Court of the Seventh Judicial District,
               In and for the County of McCone
               Honorable Leonard Langen, Judge presiding.
Counsel of Record:
    For Appellants:
        Gene Huntley argued, Baker, Montana
        R. W. Heineman argued, Wibaux, Montana

    For Respondents:
        Lucas and Monaghan, Miles City, Montana
        Thomas llonaghan argued, Miles City, Montana
        Robert Hoover argued, Circle, Montana


                             Submitted:    March 2, 1982
                               Decided :   J4H 2 4 l ~ q a
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
     Matthew and Judith James, defendants and appellants herein,
appeal from a judgment entered in the District Court of the
Seventh Judicial District of the State of Montana, in and for
the .County of McCone.
     The respondents in this action, the County of McCone, State
of Montana, and the Town of Circle, Montana, acting by and
through the Town of Circle-County of McCone Joint Airport Board,
a public agency, commenced an action to condemn approximately
20.45 acres of land owned by the appellants, Matthew and Judith
James, husband and wife, for the public purpose of enlargement
of a public airport owned and operated by respondents.
     On April 24, 1980, a necessity hearing was held wherein the
court determined that the purpose sought was public and that the
land was necessary and ordered condemnation of the land.     The
preliminary order of condemnation was issued on April 26, 1980.
     Thereafter, a commissioners' hearing was held to ascertain
and determine the amount to be paid to the appellants by reason
of the appropriation.     The commissioners awarded the landowners
$91,900 for the taking.
     On May 13, 1980, the respondents appealed the assessment of
the commissioners to the District Court, and a jury trial com-
menced on June 9, 1980.
     Prior to the commencement of the trial on damages, counsel
for the Airport Board presented a motion in limine to the Dis-
trict Court.   The motion sought to limit evidence on five dif-
ferent areas, including the following:
     "3. That the abandonment of those parts of the east-
     west north-south county roads which form the inter-
     section at the corner of sections 11, 12, 13, and 14,
     Township 19 North, Range 48 East, M.P.M. McCone
     County, Montana, causes any damage to the remainder
     of defendants' property after the taking of the
     20.45 acres of land in this eminent domain proceed-
        i n g f o r t h e r e a s o n t h a t it i s t h e r u l e of law i n
        Montana t h a t c o u n t r y r o a d s a r e c r e a t e d by law f o r
        t h e p u b l i c and t h e owner of l a n d a b u t t i n g on a
        c o u n t r y road ( c o u n t y r o a d ) h a s no p r o p e r t y o r
        o t h e r v e s t e d r i g h t i n t h e c o n t i n u a n c e of it a s a
        c o u n t r y r o a d a t p u b l i c e x p e n s e , i n t h e a b s e n c e of
        d e p r i v a t i o n of i n g r e s s and e g r e s s .      That t h e
        d e f e n d a n t s have a d e q u a t e i n g r e s s and e g r e s s t o
        t h e remainder of t h e i r p r o p e r t y a f t e r t h e t a k i n g
        of t h e 20.45 a c r e s of l a n d and t h e abandonment
        of t h e p o r t i o n s of t h e c o u n t y r o a d n o t e d .       State
        v. H o b l i t t , 87 Mont. 403, 288 P. 181; S t a t e v.
        P e t e r s o n , 134 Mont. 52, 328 P.2d 617; S t a t e v.
        Lahman, 172 Mont. 480, 565 P.2d 303; and Wynia
        v. C i t y of G r e a t F a l l s , - Mont             .        , 600 P.2d
        802. "

The D i s t r i c t C o u r t g r a n t e d t h e motion i n l i m i n e .

        A p p e l l a n t s t h e n made an o f f e r of proof w i t h r e s p e c t t o t h e

D i s t r i c t C o u r t ' s r u l i n g t o show t h a t t h e r e m a i n i n g a c c e s s t o

a p p e l l a n t s ' l a n d was i n a d e q u a t e and u n r e a s o n a b l e .   The a p p e l -

l a n t s contended t h a t t h e o n l y a c c e s s t o t h i s s e c t i o n of l a n d was

c i r c u i t o u s and dangerous.            The r o a d c r o s s e d r a i l r o a d t r a c k s i n

such a way t h a t it p r e v e n t e d t h e a p p e l l a n t s from e n j o y i n g t h e

h i g h e s t and b e s t u s e of t h e l a n d .         The t e s t i m o n y r e v e a l e d t h a t

t h e h i g h e s t and b e s t u s e o f t h e l a n d was commercial and r e s i d e n -

t i a l and a p p e l l a n t s had been s e l l i n g a c r e a g e s f o r t h e s e p u r p o s e s

f o r a number of y e a r s .           F u r t h e r , t h e D i s t r i c t C o u r t r u l i n g had

excluded t e s t i m o n y from a r e a l e s t a t e a p p r a i s e r r e g a r d i n g damage

t o t h e remainder of t h e a p p e l l a n t s ' p r o p e r t y as a r e s u l t of t h e

condemnation.            The t e s t i m o n y o f t h e a p p r a i s e r was t h a t t h e remain-

i n g a c r e a g e ( 1 2 0 a c r e s ) had been d e p r e c i a t e d by a p p r o x i m a t e l y

$1,000 p e r a c r e .        T h i s e v i d e n c e had been a c c e p t e d a t t h e commis-

sioners' hearing.

        A t t h e end of t h e t r i a l ,         t h e j u r y awarded a p p e l l a n t s t h e

sum of $40,388.75 f o r t h e 20.45-acee                       t r a c t of l a n d and $4,110

f o r t h e d e p r e c i a t i o n of v a l u e which would a c c r u e t o t h e re-

mainder of t h e a p p e l l a n t s ' l a n d .

        The s o l e i s s u e on a p p e a l i s whether t h e D i s t r i c t C o u r t

e r r e d i n g r a n t i n g p l a i n t i f f s ' motion i n l i m i n e r e g a r d i n g damages
for impairment of access to the remaining land of the defendants.
        The District Court erred when it granted plaintiffs-
respondents' motion in limine.     The court, by granting the

motion, prevented the trier of fact--the jury--from receiving
all the relevant evidence pertaining to the change in value
of the appellants' land as a result of the condemnation.       Further,
the cases which were used do not wholly comport with the vast

majority of jurisdictions on the narrow issue of what evidence
should go before the jury.
        The cases of State v. Hoblitt (1930), 87 Mont. 403, 288 P.
181; State v. Peterson (1958), 134 Mont. 52, 328 P.2d 617;
State v. Lahman (1977), 172 Mont. 480, 565 P.2d 303; and Wynia

v. City of Great Falls (1979), - Mont . -, 600 P.2d 802, 36
St.Rep. 1589, were cited by the District Court as authority for
the granting of the motion in limine.     While each of these cases
is somewhat different factually, they all, in part, conclude
that:
     "The owner of land abutting on a highway established
     by the public has no property or other vested right
     in the continuance of it as a highway at public ex-
     pense, and, at least in the absence of deprivation
     of inaress and earess cannot claim damaaes for its
             4          d                      d


     mere discontinuance, although such discontinuance
     diverts traffic from his door and diminishes his
     trade and thus depreciates the value of his land."
     State v. Hoblitt, 288 )PI.at 184.
        These cases hold that a jury cannot receive evidence con-
cerning a diminution in the value attributed to a traffic flow
past the business enterprise without a corresponding deprivation

of ingress and egress.
     The rule followed by approximately forty jurisdictions was
perhaps best summarized by the Florida Supreme Court in Capital
Plaza, Inc. v. Division of Administration, State Dept. of Trans.
(Fla. 1979), 381 So.2d 1090 (while citing State Department of
Transportation v. Stubbs (Fla. 1973), 285 So.2d l), where it held:
       "The important question is whether there has been
       a substantial diminution in access as a direct
       result of the taking. What is 'substantial' is a
       question of fact posing practical problems of
       proof for the jury's consideration. Where some
       right of access is still available, as would ap-
       pear in the cause under consideration, it is for
       the jury to determine whether the resulting dam-
       ages are nominal or substantial. See State Road
       Department of Florida v. McCaffrey [(Fla.App.
       1969), 229 So.2d 6681, supra; Stoebuck, supra,
       at 765.
       "The court went on to point out in Stubbs that
       'access' as a property interest does not include
       a right to traffic flow even though commercial
       property might suffer adverse economic effects
       as a result of a diminution in traffic. It held
       that one has a right to introduce evidence at trial
       of severance damages resulting from physical impair-
       ment of access rather than for an impairment in
       'traffic flow.'" 381 So.2d at 1092.
See:   Nichols on Eminent Domain, Vol. 2, section 5.72; Art. 11,
Section 29, 1972 Mont. Const.
       Here, the appellants should have been allowed to present

evidence of the alleged decreased inalue of their land, as a result
of the condemnation, to the jury.    It is for the trier of fact
to determine if the change in access has caused a substantial
or negligible change in the value of the condemnee's land.
       The judgment is vacated, reversed and remanded for a new
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trial with the above instructions.       ,
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We concur:


 4 Chief Justice
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