                                   No. 12138

          I N T E SUPREME COURT O THE STATE O MONTANA
               H                 F           F

                                        1972



THE STATE O MONTANA, Acting by and through
                 F
t h e S t a t e Highway Commission o f t h e S t a t e
of Montana,

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



D N L V. ROTH and JEANNE A. ROTH,
 O AD
H S A D AND WIFE,
 UB N

                           Defendants and A p p e l l a n t s .



Appeal from:     D i s t r i c t Court o f t h e Fourth J u d i c i a l D i s t r i c t ,
                 Honorable J a c k L. Green, Judge p r e s i d i n g .

Counsel of Record :

       For Appellants :

             Edward T. Dussault argued, Missoula, Montana.

       For Respondent :

             K. M. B r i d e n s t i n e argued, Helena, Montana.



                                           Submitted:        March 15, 1972

                                              Decided :
                                                             MAY 1 1 1!37i?,
Filed :   m 11
           y
Mr. Chief J u s t i c e James T. Harrison delivered the Opinion of the Court.
          This i s an appeal from a judgment entered in Missoula County
d i s t r i c t court on a jury verdict i n the amount of $7,250, in a condemna-
tion action brought by t h e S t a t e of Montana, respondent herein, t o acquire
c e r t a i n water r i g h t s and waters of the defendants, appellants herein.
          The f a c t s i n t h i s case may be summarized as follows:       This eminent
domain action was f i l e d by the S t a t e Highway Commission of Montana (here-
i n a f t e r referred t o as Commission) t o acquire an i n t e r e s t owned by defend-
ants Donald V . Roth and Jeanne A. Roth, f o r I n t e r s t a t e highway purposes.
          The i n t e r e s t t o be acquired i s a water appropriation dated in the
year 1910, which may be designated as a "stream" flowing out of c u l v e r t
No. 233 on the Northern Pacific Railway l i n e .          The notice of appropriation
did not specify any amount of water.           Further, the exact point of appropri-
ation was not accurately determined a t t r i a l , as none of the witnesses were
able t o pinpoint c u l v e r t No. 233.
          There was a culvert under Highway 10 which connected t o a 24" x 12'
pipe, which in turn connected t o a 36" x 72' pipe under the Northern Pacific
mainline.    T h i s l a t t e r 36" x 72' pipe discharged i n t o a ditch running par-
a l l e l t o and along the southerly portion of the Northern Pacific right-of-
way t o a point where i t intersected the Clinton I r r i g a t i o n D i s t r i c t canal.
Pursuant t o a long standing agreement between defendant Donald Roth and t h e
Clinton I r r i g a t i o n D i s t r i c t Commissioners, waters from t h i s ditch were con-
ducted in the canal t o a point of intersection with Roths' private ditch
and then on t o Roths' water i r r i g a t i o n system.
          The I n t e r s t a t e project relocated the Clinton Canal and reestablished
defendant Donald Roth's connection with i t through a system of pipe-headgate
and d i t c h , pursuant t o the request of Roth f o r t h e restoration of i r r i g a t i o n
water t o h i s lands.    In addition t o the water appropriation i n question,
defendant Roth owned about 600 inches from the Clark Fork River which, through
an agreement with the Cl inton I r r i g a t i o n D i s t r i c t commissioners, was conveyed
t o his headgate f r e e of charge as consideration f o r the commissioners
being able t o use Roth's former ditch.                  N dispute l i e s as t o the continued
                                                          o
a v a i l a b i l i t y of t h i s 600 inch water r i g h t a f t e r I n t e r s t a t e construction.
The water r i g h t in question originated from lower Gaiser Slough, s i t u a t e d

across Highway 10 from the d i t c h .            N evidence was offered as t o the condi-
                                                   o
tion of the pipes under the old highway and the Northern Pacific m i n l i n e ,
o r the amount of water in the slough o r i t s source.                     Further, there was no
evidence showing lower Gaiser Slough connected t o the upper Gaiser Slough
in 1910, o r before.
           The s t a t e did introduce evidence showing the two sloughs were con-
nected by a corrugated metal pipe; however, no evidence was introduced a s
t o the condition of the pipe o r i f the water flowed through i t i n 1968.
           The evidence showed t h a t a f t e r the I n t e r s t a t e i s b u i l t , lower Gaiser
Slough i s t o be f i l l e d with "shot rock", then drained by a buried 18" per-
forated concrete drain connected t o a 30" pipe under the I n t e r s t a t e and
present Burlington Northern mainline.                   In addition, the l a t t e r would then
connect with an existing 30" concrete pipe under the adjoining Milwaukee
mainline t o discharge i n t o a d i t c h constructed as p a r t of the project t o
convey water back i n t o the Clinton Canal a t a point south of the Milwaukee
mainline.      The testimony indicated the system would return a substantial
amount of water, and t h a t drainage from t h i s system would be a v a i l a b l e t o
defendants.
           I t was defendants' contention t h a t they should receive $32,500 com-
pensation f o r the acquisition of t h i s appropriation a t c u l v e r t No. 233.
Their expert appraiser, Melvin Beck, valued the appropriation a t $140 per
miner's inch, f o r 90 miner's inches, t o t a l l i n g $12,600.                Mr. Beck then t e s t i -
f i e d t o replace the l o s t "stock water", three wells a t a price of $7,000
each would be required.            The court then required Beck t o e l e c t between the
two value figures f o r the taking.               Consequently Beck chose t h e three wells
a t $7,000, t o t a l 1ing $21,000.         Beck attempted t o evaluate the appropriation,
f i r s t f o r i r r i g a t i o n water purposes, and then f o r stock water purposes.
           The commission presented testimony from Ivan Shaw, an expert
appraiser, who predicated compensation on construction plans , and the
cost of one stock water we1 1 a t $5,000.           Defendants' counsel cross-examined
Shaw a t length about water from under the f i l l i n lower Gaiser Slough, and
Shaw t e s t i f i e d the water would be recovered.       The we11 d r i l l i n g c o s t s were
authenticated by witness William Osborne, the well d r i l l e r .
           Instructions t o the jury included defendants' proposed No. 7 , given
over objection as c o u r t ' s instruction No. 13,in which the high compensation
testimony of defendant Donald Roth of $32,500 and the low testimony of Shaw
a t $5,000 were s t a t e d a s the l i m i t s f o r the jury.   There was no objection
by e i t h e r of the p a r t i e s as t o the form of the verdict.       The jury returned
a v e r d i c t f o r Roth, awarding h i m $7,250 compensation.
           Appellants r a i s e two issues f o r review i n this matter:
           (1 ) That the t r i a l court erred i n refusing t o allow testimony of
comparable s a l e s of water f o r i r r i g a t i o n purposes; and

           (2)    That the verdict was rendered on s t a t e ' s evidence not support-
ed by f a c t .
           W find no merit whatsoever in defendants' contention t h a t the d i s -
            e
t r i c t court erred in limiting t h e defendants t o testimony r e l a t i n g t o t h e
value of Gaiser Slough waters t o stock water value only.                  S p e c i f i c a l l y the
record shows defendants did put i n t o evidence a comparable s a l e of 61 inches
of water f o r i r r i g a t i o n purposes t h a t was sold f o r $140 per miner's inch.
Defendants contend t h a t the d i s t r i c t court, by i t s r u l i n g , took away from
the jury the right t o consider the value of Gaiser Slough waters f o r i r r i g a -
t i o n purposes, when the record was r e p l e t e w i t h testimony of the use of the
water f o r i r r i g a t i o n purposes f o r twenty-nine years by the defendants and
f o r three decades prior t h e r e t o by t h e i r predecessors.
           Our review of a l l the testimony contained within the record indicates
t h i s was not a t a l l the case and we deem i t necessary t o s t a t e with particu-
l a r i t y the actual sequence of events a t the t r i a l of t h i s matter which
lends c l a r i t y t o the j u r y ' s verdict.      The record shows t h a t Melvin Beck,
defendants' expert appraiser, t e s t i f i e d he had a comparable s a l e of water
f o r i r r i g a t i o n purposes wherein 61 inches of water was sold f o r $140 an
inch.     A second offered s a l e was correctly refused by the court on the
ground of surprise.           A t a l a t e r point in the t r i a l of t h i s matter, the
court required Mr. Beck t o e l e c t which of the two valuations of the thing
taken he would use, then excluded the other.                  Mr. Beck used the measurements
made by witnesses Carden and Marlowe, of 90 miner's inches applied t o the
appropriation i n question, multiplied by $140 an inch, f o r a t o t a l of $12,600
f o r the water claimed t o be acquired by the Commission.                  Beck then revalued
t h i s same water f o r stock water purposes, measuring t h i s p a r t i c u l a r value
by the extension of c o s t of three wells a t $7,000 each, or $21,000.                     From the

foregoing, i t i s c l e a r t h a t had the court allowed Beck t o add $12,600 and
$21,000, this would have t o t a l l e d $361.50 or more per miner5 inch, amounting
t o a double value of the "taking".
           Defendants c i t e the decision of Perkins v . Kramer, 148 Mont. 355,
423 P.2d 587, f o r the proposition t h a t i t i s the announced policy of this
s t a t e t o promote the i r r i g a t i o n of land whenever possible, and therefore in
the i n s t a n t case the c o u r t ' s taking of an i r r i g a t i o n r i g h t without any com-
pensation whatsoever i s contrary t o t h a t decision.              W hold the Perkins case
                                                                      e
bears no a p p l i c a b i l i t y t o the matter before us.      In addition the record shows
there was no evidence t h a t defendants l o s t i r r i g a t i o n water.       The f a c t s show
defendants received 600 inches of water from the Clark Fork River, which was
carried f r e e of cost t o them a t t h e i r d i t c h .    Defendant Donald Roth f u r t h e r
admitted he could only make beneficial use of 140 miner's inches.                        Defend-
a n t s s t a t e the following i n t h e i r b r i e f :
           "As we s t a t e d , not only did the defendants and t h e i r
           predecessors have an established water r i g h t since 1910
           out of the Gaiser Sloughs, they had a l s o established a
           d i t c h r i g h t t o convey said waters from lower Gaiser
           Slough t o t h e i r property s i t u a t e d nearly 2 miles away.
         Most of said ditch r i g h t was on Northern Pacific
         (Burl ington-Northern),Milwaukee Ry. and pub1 i c
         domain. In 1946 the S t a t e recognized the water
         r i g h t and ditch r i g h t of defendants by placing a
         24 inch concrete pipe f o r a distance of over 1600
         f e e t under the then relocated Highway 10, East."
         Our examination of the record indicates defendants f a i l e d t o prove
a t the t r i a l any of the above allegations.       The 1910 appropriation specified
no source, no amount, nor any ditch r i g h t .       W can find nothing t o support
                                                       e
defendants' contention t h a t they had any ditch r i g h t on railway property o r
public domain, nor did defendants o f f e r any evidence t o support t h e i r con-
tention t h a t the s t a t e "recognized" t h e i r r i g h t s i n 1946 by putting in a
pipe between upper and lower Gaiser Sloughs.             If t h i s evidence was essential
a t t r i a l , and i f proof of these "facts" was necessary t o support defendants'
demands, defendants, not the commission, had the burden of proof t o e s t a b l i s h
them.   S t . Hwy. Cornm'n v. Emery, 156 Mont. 507, 481 P.2d 686; S t a t e Highway
Cornm'n v . Barnes, 151 Mont. 300, 433 P.2d 16; S t a t e v. Peterson, 134 Mont.
52, 328 P.2d 617.
         In i t s simplest form, t h i s matter before us involved a resolution of
a factual question by a jury, namely, the determination of a value f o r the
i n t e r e s t defendants owned and the s t a t e of Montana acquired.     The court prop-
e r l y instructed the jury t h a t they could award defendants compensation as
high as $32,500, defendants' demand, or $5,000, which comprised t h e s t a t e ' s
value evidence.     W cannot countenance defendants ' contention t h a t the c o u r t ' s
                     e
limi t a t i o n of witness Beck's testimony t o $21,213 1imited the j u r y ' s consid-
erations of appropriate value.
         W f i n d , i n addition, no merit t o defendants' f i n a l point of conten-
          e
tion t h a t the verdict was rendered on s t a t e ' s evidence not supported by f a c t .
F i r s t , the record reveals t h a t the Commission did not guarantee anything
would drain from the proposed system, nor t h a t the defendants would, i n f a c t ,
receive any water from i t .      The Commission's f e e appraiser, Mr. Shaw, refused
t o guarantee defendants would receive water from the new system of drains,
though he s t a t e d , i n his opinion,he f e l t approximately 70 inches would be
recovered.     N e f f o r t was made by defendants t o move t o s t r i k e o r modify
                o
Shawls opinion testimony.         There was no s t i p u l a t i o n o r agreement by the
Commission t h a t water would be recovered a f t e r construction.           Referring
s p e c i f i c a l l y t o the 30" pipe under the Milwaukee Railroad mainline, t o
which the drainage system was t o be connected, Mr. J e r r y Tahi j a , s t a t e ' s
witness, t e s t i f i e d the connections were not completed a t the time of t r i a l ,
and Shaw t e s t i f i e d there was a " p r e t t y nice stream there".    Defendant
Donald Roth returned t o the stand f o r rebuttal and t e s t i f i e d exactly t o the
contrary, denying there was "any" stream coming from t h a t s p e c i f i c pipe.
There was, therefore, a factual s i t u a t i o n f o r the jury to resolve.
          I t has long been the r u l e of law i n this s t a t e and other j u r i s d i c -
tions t h a t in the absence of a c l e a r showing of abuse of d i s c r e t i o n the
determination of the t r i a l court i n granting o r denying a motion f o r a new
t r i a l will not be disturbed.     S t a t e Highway Comm'n v . Manry, 143 Mont. 382,
390 P.2d 97.     Further, the burden i s on the movant t o prove abuse of d i s c r e t i o n .
S t a t e Highway Comm'n v . Schmidt, 143 Mont. 505, 391 P.2d 692.
          In addition, i t i s a principle of law i n t h i s s t a t e t h a t where there
i s substantial evidence t o support a v e r d i c t , the lower c o u r t ' s refusal t o
grant a new t r i a l will not be disturbed.         Kincheloe v. Rygg, 152 Mont. 187,
488 P.2d 140.
         Our review of a l l testimony contained herein leads us t o the con-
clusion there was substantial evidence t o support the j u r y ' s verdict.               The
jury was asked t o determine one sum f o r t h e i r award t o defendants.           The ver-
d i c t form submitted by defendants required only t h a t one sum, and i n f a c t
the amount awarded the defendants by the jury was higher than the evidence
offered by the Commission.         W feel instruction No. 13 which reads in p a r t
                                    e
a s follows was proper:
         "You may not award compensation i n excess of the amount
         claimed by the defendants, which amount i s $32,500.00;
         nor may your v e r d i c t be 1e s s than $5,000.00, t h e amount
         of the lowest testimony offered by t h e S t a t e in t h i s
         matter. "
            F i n a l l y , defendants seem t o i n f e r i n t h e i r b r i e f some misconduct

by t h e j u r y i n t h e t r i a l o f t h i s m a t t e r .   They attempt t o e s t a b l i s h such

misconduct by an a f f i d a v i t o f t h e i r counsel f i l e d w i t h t h e i r motion f o r a

new t r i a l , and a statement i n t h e i r b r i e f t h a t t h e y had a f f i d a v i t s o f

t h r e e j u r y members.      Whatever defendants ' c o n t e n t i o n o f any j u r y misconduct,

i t i s t h e law o f t h i s s t a t e a j u r y cannot impeach i t s v e r d i c t on a f f i d a v i t s

o f any member o r members o f t h e j u r y except f o r t h a t ground s e t f o r t h i n

s e c t i o n 93-5603(2),      R.C.M.     1947.      Rasmussen v. S i b e r t , 153 Mont. 286, 456

P.2d 835.        F u r t h e r , n o t h i n g i n t h i s appeal r a i s e s t h e r u l e o f G o f f v. K i n z l e ,

14'8 Mont. 61, 417 P.2d 105.

            For t h e f o r e g o i n g r e a




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