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.
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