                         No. 13156

         IN THE SUPREME COURT OF THE STATE OF MONTANA




STATE OF MONTANA, acting by and through
the Department of Highways,
                     Plaintiffs and Appellants,



EDWARD C. LAHMAN and MARGARET K.
LAHMAN, husband and wife,
                     Defendants and Respondents.



Appeal from:      District Court of the Third Judicial District,
                  Honorable Judge James D. Freebourn, presiding
Counsel of Record:

     For Appellants:
           Frank Meglen argued, Helena, Montana

     For Respondents :
           Mulroney, Delaney and Dalby, Missoula, Montana
           Dexter Delaney argued, Missoula, Montana



                                Submitted:       January 20, 1977

                                     Decided :   MAY 2 4 197

Filed:
           At L   19-n
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
          Plaintiff, Department of Highways, appeals from a judg-
ment for the landowners in the amount of $125,660, entered after
a jury trial in the district court of Powell County.
          Defendants Edward C. and Margaret K. Lahman own a 415.9
acre tract of land southeast of Garrison, Montana.    The State
condemned 77.3 acres of defendants' land for the purpose of con-
structing a section of Interstate 90, and an interchange for the
community of Garrison; another 1.6 acres of defendants' land were
condemned for construction permits.    Defendants operate a trailer
park-campground on the property.
          Defendants valued the property at $300,000 prior to the
taking.    Their estimate of the fair market value of the land
taken and the depreciation to the remaining land was $200,000.
Enclosed in this later figure is $24,000 due to depreciation by
reason of impairment of access.    The State made a motion in limine
asking to restrict testimony on impairment of access which the
State claimed was merely a euphemism for diversion of traffic
caused by the change of traffic flow and not compensable.     The
motion in limine was denied by the district court.    Defendants
then presented testimony regarding value and depreciation caused
by impairment of access.
          Defendants' original tract is irregularly shaped.   The
southern boundary is a railroad right-of-way which follows the
flow of the Clark Fork River in a gradual northerly curve along
the more erratic path of the river.   The northern boundary follows
the survey line in a descending stair step pattern using the sides
of a quarter section as the width and height of the steps.    The
descending stair step pattern and the railroad right-of-way inter-
sect forming the eastern boundary of defendants' land.   The north-
ward sloping curve of the railroad right-of-way and the "top
step" are connected by a short straight line to form the western
                             boundary of the tract.
                                                                The parcel of land condemned for the right-of-way has
                                 the shape of a "Y" lying on its side.                                           The tail of the "Y"
                                 shaped highway                                right-of-way begins at the eastern boundary of
                             defendants' land and follows the railroad right-of-way for about
                                 a third of the length of defendants1 land.                                          At that point it de-
                             parts sloping upward until it very nearly bisects the defendants1
                                 land by its path.                                At a point about two-thirds of the way through
                             defendants1 tract, the highway right-of-way splits and forms the
                             arms of the "Y".                                    The northern arm is a westbound exit into
                             Garrison and the southern arm is an Interstate right-of-way which
                             continues parallel to the railroad right-of-way bisecting defen-
                             dants' land.
                                                               A reproduction of the ownership sketch of the take is
                             included here to illustrate the description of the tract.




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                                                               The result of the odd shape of the State's right-of-way
                             taking, is that defendants' remaining property is divided into
                             three parcels.                                    The largest is about 205 acres and is the part
                             of the original tract north of the Interstate right-of-way and
                             east of the northern arm of the "Y".                                            The second parcel is the
                             section of the original tract located south of the Interstate
                             right-of-way and is about 100 acres.                                            The third parcel is the
part of the original tract which lies between the arms of the
11   y 'I   .   This parcel contains defendants' residence and business.
which is a mobile home court and a recreational camping area.
                 The State appeals from the district court's denial
of its motion for a new trial and raises two issues for review:
                  (1) The admissibility of testimony in a condemnation
action for damages caused by impairment of access.
                  (2) The admissibility of testimony on value based on
comparable sales from witnesses who had made sales but had not
made an appraisal nor determination of the highest and best use
of the subject land.
                 Issue 1.
                 The first issue arises from testimony by defendant and
his expert witness, Roy Rodenberger, concerning the diminution
in value of defendants' land and business due to the construc-
tion of the highway.           Defendant and Rodenberger testified over
the State's objection that defendants' property would be reduced
in market value by two-thirds.           These witnesses stated that their
opinions were based upon the factors of:           total deprivation of
the recreational amenities of the Clark Fork River, partial
deprivation of the recreational amenities of the Little Blackfoot
River, deprivation of aesthetic features such as view and scenery
by the 41 foot highway grade, increased noise, a limitation on
existing area with which to expand and improve the trailer park
facilities, along with an unreasonable impairment of access.
                 The basis of the State's objection to this testimony was
their theory that the only possible damage suffered by defendants
was an impairment of access and such damage is noncompensable.
                 The State is correct in its contention that damages for
strict impairment of access are noncompensable.           State v. Hoblett,
87 Mont. 403, 288 P. 181.           In State v. Peterson, 134 Mont. 52,
68, 72, 328 P.2d 617, we stated:
        "'The owner of land abutting on a highway estab-
        lished by the public has no property or other
        vested right in the continuance of it as a high-
        way at public expense, and, at least in the
        absence of deprivation of ingress and egress,
        cannot claim damages for its mere discontinuance,
        although such discontinuance diverts traffic from
        his door and diminishes his trade and thus de-
        preciates the value of his land.'


        " * * * But the fact remains that the former high-
        way remains just as it was before and defendants'
        easement of access is not interfered with or in any
        way damaged. Stripped of misleading arguments and
        statements, defendants' claim for damage to the re-
        maining property is nothing more than damage by
        reason of diversion of traffic from their door and
        resulting loss to business. This is in the nature
        of damnum absque injuria."
        The damages involved in the instant case however, are
not solely attributable to an impairment of access.   Defendant is
suffering damages caused by the severance of the portion of his
property being used for a mobile home park and campground from
the balance of his property.   The record is perfectly clear that
a great deal of the value of the mobile home park-campground area
is directly attributable to the aesthetic amenities of the balance
of defendants' property.
        This Court has discussed damages for partial taking and
decrease in value to the remainder of the parcel in State v.
Hoblitt, 87 Mont. 403, 408, 288 P. 181:
       "Ordinarily damages may be awarded only for injury
       done to the particular lot or tract of land from
       which the right of way strip is taken, and the
       above rule is applied in ascertaining the award to
       be made by a determination of the value of the
       acreage taken, and the depreciation in value of the
       remainder of the particular tract, regardless of
       what other lands the owner may possess (sec. 9944,
       Rev. Codes 1921, [now R.C.M. 1947, B 93-99121;
       Lewis and Clark County v. Nett, 81 Mont. 261, 263
       P. 418), but, even where two tracts are separated
       by a highway or watercourse, or, as here, by a
       railway, if they are used jointly by the owner
       in a single enterprise and the whole plant is
       depreciated in value by the proposed improvement,
       the direct damages suffered may be compensated."
              ( S e e a l s o S t a t e v. Bradshaw Land & L i v e s t o c k Co.,
              99 Mont. 95, 43 P.2d 674; Montana R. R. Co. v.
              F r e e s e r , 29 Mont. 2 1 0 , 74 P . 407.)

              The d i s t r i c t c o u r t d i d n o t commit e r r o r i n a d m i t t i n g

t h e t e s t i m o n y of d e f e n d a n t and Rodenberger c o n c e r n i n g t h e re-

duction i n value of defendants' property.                              The l o n g s t a n d i n g

r u l e i n t h i s j u r i s d i c t i o n i s t h a t t h e measure of damage i n a

condemnation p r o c e e d i n g i s t h e f a i r m a r k e t v a l u e of t h e l a n d

s o u g h t t o be condemned w i t h t h e d e p r e c i a t i o n o f such v a l u e o f

t h e l a n d from which t h e s t r i p i s t o be t a k e n , less a l l o w a b l e

d e d u c t i o n s f o r b e n e f i t s proven.      Lewis and C l a r k County v . N e t t ,

8 1 Mont. 261, 263 P . 418; S t a t e Highway Comm'n v . Emery, 156

Mont. 507, 481 P.2d 686.                    Defendants have s u f f e r e d damage by

t h e s e v e r a n c e of t h e i r b u s i n e s s p r o p e r t y from t h e i r a d j o i n i n g

r e c r e a t i o n a l p r o p e r t y and a r e e n t i t l e d t o p r e s e n t e v i d e n c e i n

o r d e r t o e s t a b l i s h such damage.

              T h i s Court a d h e r e s t o t h e r u l e t h a t i n eminent domain

p r o c e e d i n g s t h e j u r y v e r d i c t w i l l n o t be d i s t u r b e d on a p p e a l

u n l e s s it i s o b v i o u s l y o u t o f p r o p o r t i o n t o t h e i n j u r y t o t h e

land taken.            S t a t e Highway Comm'n v . Manry, 1 4 3 Mont. 382, 390

P.2d 97; S t a t e Highway Comm'n v. P e t e r s o n , s u p r a and cases c i t e d

therein.         W e f i n d no such g r o s s u n f a i r n e s s i n t h e j u r y ' s award

and t h e r e f o r e w i l l n o t d i s t u r b it.

              I s s u e 2.

              The S t a t e r a i s e s a q u e s t i o n c o n c e r n i n g t h e t e s t i m o n y o f

two w i t n e s s e s , Don V a l i t o n and Frank Shaw.                 Shaw i s a r e a l e s t a t e

b r o k e r i n t h e a r e a and h e t e s t i f i e d g e n e r a l l y t o t h e e x i s t e n c e

o f a demand f o r r u r a l h o m e s i t e s i n t h e Garrison-Deer Lodge a r e a

and t o a wide r a n g e o f p r i c e s p a i d f o r l a n d s i m i l a r t o t h a t owned

by d e f e n d a n t s .     V a l i t o n t e s t i f i e d t o t h e number of s a l e s , t h e

p r i c e and t h e s p e c i f i c c h a r a c t e r o f t h e r u r a l h o m e s i t e s h e had

sold.       H e t e s t i f i e d t o t h e s i m i l a r i t i e s and d i f f e r e n c e s between
this land and that of defendants.   Both witnesses testified
they were familiar with defendants' property.
         The State relies on State Highway Commission v. Green-
field, 145 Mont. 164, 170, 169, 399 P.2d 989, as support for
                                and who has not made an expert
its contention that one who is not an expert/appraisal of the
land in question may not testify as to the value of the land.
In Greenfield there appears a thorough discussion of the ad-
missibility of comparable sales prices allowed into evidence
over a hearsay and best evidence objection.     There the Court
said :
         "I * * * From a practical standpoint, if each
         person previously involved in effecting comparable
         sales should have to be called to the stand to
         establish the detailed facts of such sales, it
         would lengthen litigation of this ltind out of all
         reason and would make it almost impossible for
         the State or defending landowners to make a proper
         showing as to valuation opinion within a reasonable
         time and at reasonable expense. * * *I"
         However, in considering this Court's opinion in Greenfield,
the State failed to note that portion of the Court's opinion
wherein we held, in allowing the testimony of a landowner, that:
         "In so approving this form of testimony we place
         a burden on the trial judge to test the expertise
         of the witness as to local real estate business.
         State Highway Comm'n v. Peterson, 134 Mont. 52,
         328 P.2d 617; State Highway Comm'n v. Keneally,
         142 Mont. 256, 384 P.2d 770. The party calling
         such expert witness must also satisfy the trial
         court that the sales were recent, in the vicinity,
         and involving land comparable to the land in issue."
This is precisely what happened in the instant case.        The trial
court considered the credentials of witnesses Valiton and Shaw
and allowed their testimony.   There can be no argument that the
evidence as to comparable sales is relevant.       State Highway
Comm'n v. Jacobs, 150 Mont. 322, 435 P.2d 274; State, Department
of Highways v. Schreckendgust,      Mont   .   ,   551 P.2d 1019; 33
St.Rep. 568; Montana Power Company v. Wolfe,         Mont   .   ,   545
P.2d 674, 33 St.Rep. 172; Montana R'y Co. v. Warren, 6 Mont. 275,
           It is clear the determination of the competency of witnesses
to testify in a condemnation case as to property valuation is
within the discretion of the court.     In 2 Lewis, 3rd ed, Eminent
Domain, 5656, p. 1127, it is said that all that is required is:
          " * * * It must appear that he [the witness] has some
          peculiar means of forming an intelligent and correct
          judgment as to the value of the property in question
          beyond what is presumed to be possessed by men
          generally."
See:     State Highway Comm'n v. Keneally, 142 Mont. 256, 384 P.2d 770.
          Here, both witnesses were familiar with rural homesite
land sales and defendants' land.    The district court found them
competent to testify and their testimony was relevant.    While the
court could have refused to allow this testimony based on consider-
ations of judicial economy to prevent cumulative testimony, sec-
tion 93-1901-3, R.C.M. 1947, here it is not error to refuse to
exclude such relevant evidence. State Highway Comm'n v. Greenfield,
supra.
          For the foregoing reasons the judgment of the district
court is affirmed.



                                          Justice




Justices
            6
            '
Mr. Justice John Conway Harrison dissenting:


     I dissent. For the past 19 years State v. Peterson, 134 Mont
52, 68, 72, 328 P.2d 617, has been the ruling case law of this
state on the issue of abutting property owner's   rights. Until today,

Peterson has been one of the most cited and relied upon decisions

of this jurisdiction in the field of eminent domain litigation.

Our departure from that holding will in my opinion seriously affect

litigation in future eminent domain cases.

     I would reverse the trial court on the first issue, relying
on Peterson and a host of cases since that holding.   In Peterson

this Court held:
         "'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 expense, and at
     least in the absence of deprivation of ingress and egress,
     cannot claim damages for its mere discontinuance, although
     such discontinuance diverts traffic from his door and dimin-
     ishes his trade and thus depreciates the value of his land. t



         "~ut the fact remains that the former highway remains
     just as it was before and defendants' easement of access
     is not interfered with or in any way damaged. Stripped of
     misleading arguments and statements, defendants' claim for
     damage to the remaining property is nothing more than damage
     by reason of diversion of traffic from their door and re-
     sulting loss to business. This is in the nature of damnum
     absque injuria." 134 Mont. 68,72.

     The testimony of the expert appraiser as to the loss of value

to the residential and commercial parcel because of loss of convenient
access to that parcel is in effect testimony about the loss of business
due to the rerouting of the highway and that loss is not compensable.
It was error to admit that testimony.   State v. Hoblitt, 87 Mont.403,

411, 288 P. 181; State v. Thelberg, 87 Ariz. 318, 350 P.2d 988; Troiano
v. Colorado Dept. of Highways, 170 Colo. 484, 463 P.2d 448. Mabe v.

State, 83 Idaho 222, 360 P.2d 799,
