The rule giving the trial court discretionary power to grant a new trial when of the opinion that the evidence preponderates against the decision of the jury has no application in this character of action. This is a special proceeding, not a civil action. It has always been considered the rule in eminent domain proceedings that the commission, or jury, decide the amount of compensation to be made from their view of the premises and knowledge of conditions as well as from the evidence, and that their finding is final and should not be disturbed. The defendants in the action have a legal right that the jury acting as a commission shall fix the damages, rather than that the court shall fix the damages. (Conness v. Indiana etc. R.R. Co.,193 Ill. 464, 62 N.E. 221; Beveridge v. Lewis, 137 Cal. 619, 92 Am. St. Rep. 188, 59 L.R.A. 581, 67 P. 1040, 70 P. 1084;Groves etc. R.R. Co. v. Herman, 206 Ill. 34, 69 N.E. 36;City of Kansas v. Butterfield, 89 Mo. 646, 1 S.W. 831.) The trial judge may not set aside the verdict of the jury in the absence of any error in the proceedings before the jury. (Central P. R.R. Co. v. Pearson, 35 Cal. 247; Western P.R.R. Co. v. Reed, 35 Cal. 621.)
Mr. L.A. Foot, Attorney General, Mr. S.R. Foot, Assistant Attorney General, and Mr. John W. Bonner, Counsel for the State Highway Commission, for Respondents, submitted a brief; Mr.Bonner argued the cause orally.
It has always been taken for granted and upheld by the decisions that under the Montana law the trial court could grant a new trial in eminent domain proceedings. It has *Page 315 been held by this court that the trial court may set aside the report of commissioners where they do not perform their whole duty in the premises, either by reason of their nonfeasance or malfeasance, or the party aggrieved may appeal. (Spratt v.Helena Power Transmission Co., 37 Mont. 60, 94 P. 631; see, also, State ex rel. State Highway Com. v. Speidel, 87 Mont. 221,286 P. 413.)
Counsel for the appellants states in effect that the trial court cannot grant a new trial in eminent domain proceedings and thus override the verdict of the jury. We wish to point out to this court that in a hearing before commissioners it is hard to arrive at a just award, for the reason that our statutes do not provide that the commissioners be instructed as to the legal evidence to be heard and received by them at their hearing. It is an informal gathering without legal rules, and undoubtedly that is the reason why our statutes provide for an appeal from the commissioners' award in order that a trial may be had before a court and jury, where the evidence submitted by both parties is properly ruled upon by the trial court.
The California cases cited by appellants were decided in the year 1866. In that state, at that time, there was no provision made for a new trial in condemnation proceedings. The constitutionality of statutes authorizing assessment by commissioners was upheld on the ground that under the Constitution of 1849 it was only requisite that the proceedings be conducted in some equitable and fair mode. Now, however, the present Constitution of California contemplates and provides for a proceeding in court in all cases where private property is sought to be taken for public use, and the present Constitution prohibits any other proceedings to that end. It follows, therefore, that the California cases cited by the appellants are not in point on this appeal. (Trahern v. Board of Supervisorsof San Joaquin County, 59 Cal. 320; Weber v. County of SantaClara, 59 Cal. 265.) Now the California courts hold that in condemnation proceedings, as in other cases, where the evidence is conflicting, the granting or refusing of a new trial rests peculiarly in the discretion of the trial *Page 316 court. (San Diego Land Town Co. v. Neale, 88 Cal. 50, 11 L.R.A. 604, 25 P. 977; Pacific Gas Electric Co. v.Rollins, 32 Cal.App. 782, 164 P. 53.) And it is within the power of the trial court to modify the verdict of the jury by increasing the amount of damages so as to make the verdict conform to the evidence as a condition to the receiving of a motion for a new trial as in Montana. (Speidel Case, supra;Adamson v. Los Angeles County, 52 Cal.App. 125,198 P. 52.)
From the foregoing we respectfully submit that the trial court had the right and the power to grant these respondents a new trial. This action was brought by the state highway commission to condemn lands for a right of way for a state highway from Maxville to Drummond. The highway crosses the land of defendants in Granite county, taking 3.09 acres thereof, and runs parallel to a railroad right of way traversing defendants' land. No question was raised regarding the right of plaintiffs to condemn the land. The controversy was waged over the amount of compensation to be awarded to defendants Anderson.
The commissioners appointed to ascertain and determine the compensation fixed the amount at $1,607, which included $252 for 168 rods of fence, and $155 as the value of the 3.09 acres taken. From the award made by the commissioners, plaintiffs appealed to the district court, where the question was tried to a jury. The jury, after hearing evidence offered by both parties and after viewing the premises, fixed the value of the 3.09 acres taken at $77.25 and awarded $2,774.75 for damages to the "remaining land by reason of its severance from the part taken and the construction of plaintiffs' road." Plaintiffs' motion for a new trial was granted, and this appeal was taken from the order granting the motion. *Page 317
The motion for new trial was based upon excessiveness of the[1-4] verdict, insufficiency of the evidence and other statutory grounds. The order does not specify the ground upon which the motion was granted. If the order was proper upon any ground stated in the motion, it must be affirmed. (Rhoades v.Ness, 53 Mont. 322, 163 P. 559; White v. Barling,36 Mont. 413, 93 P. 348; Parsons v. Rice, 81 Mont. 509,264 P. 396.) And this is so even though the order specified the ground upon which it was granted but can only be justified on some other ground stated in the motion. (Ebaugh v. Burns,65 Mont. 15, 210 P. 892; Loncar v. National Fire Ins. Co.,84 Mont. 141, 274 P. 844.) Where the evidence is conflicting, the granting or refusing of a new trial is lodged in the sound legal discretion of the trial court, and its action will not be disturbed unless there has been a manifest abuse of discretion. (Fournier v. Coudert, 34 Mont. 484, 87 P. 455; Case v.Kramer, 34 Mont. 142, 85 P. 878; McVey v. Jemison,63 Mont. 435, 207 P. 633; Gardiner v. Eclipse Grocery Co.,72 Mont. 540, 234 P. 490; Backer v. Parker-Morelli-BarclayMotor Co., 87 Mont. 595, 289 P. 571; Russell v. SunburstRefining Co., 83 Mont. 452, 272 P. 998.)
Defendants, conceding the correctness of these principles in the ordinary case, contend they have no application to a condemnation proceeding. In substance, they contend that it is the province of the jury to fix the damages from the evidence and their view of the premises, and that the court should not interfere with the jury's determination.
When the assessment of damages is submitted to a jury after a prior assessment by commissioners, as here, the nature of the proceedings depends upon statutory provisions. (20 C.J. 1003, note 13, and 1010.) In this state the statutes, sections 9008 to 9833, Revised Codes 1921, being the statutes applicable to ordinary civil actions, constitute the rules of practice in condemnation proceedings, except as otherwise provided. (Sec. 9954, Id.) Section 9947, as amended by Chapter 145, Laws of 1927, provides that upon appeal from the award *Page 318 of the commissioners the damages "shall be re-assessed upon the same principle as hereinbefore prescribed for the assessment of such damages by commissioners." This simply means that the assessment shall be made conformably to section 9944, Revised Codes 1921, which has to do with a finding on the separate items of damages. Section 9350, which is a part of the Code of Civil Procedure, embraced within the sections referred to by section 9954, permits a view of the premises. In the ordinary civil action, where the jury has viewed the premises under order of the court, their verdict is not conclusive. (Ormund v. Granite Mt.Min. Co., 11 Mont. 303, 28 P. 289; White v. Barling,36 Mont. 413, 93 P. 348.) The purpose of the view is to enable the jury to apply the evidence and to determine the truth of the statements made by the witnesses. (Ferris v. McNally,45 Mont. 20, 121 P. 889.)
"In some cases it has been stated that the object of a view is merely to enable the jury better to understand and apply the evidence given in court, and that the view is not itself evidence upon which the verdict may be based. But the general rule is that the jury shall consider the testimony of the witnesses in connection with the facts as they appeared upon the view, and shall ascertain the damages upon the whole case, as thus presented, even if, in so doing, they arrive at a conclusion not in accord with the weight of testimony. That the jury cannot disregard the evidence and render a verdict based solely upon their personal view of the premises is held in all jurisdictions, except where the proceedings are under statutes which expressly exclude the idea of a jury trial in court, and provide for a determination of the case upon the view alone." (20 C.J., sec. 406, p. 1013.)
Ordinarily, where there has been a view of the premises and there is evidence to sustain the award, the court will not set it aside. But if it appears that the verdict or finding is excessive, the weight of authority sustains the right of the court to set it aside and grant a new trial. (20 C.J., pp. 1046, 1047.) This is clearly the rule in this state, where, by statute, *Page 319 the procedure in ordinary civil cases is made applicable to condemnation proceedings. The right to grant a new trial in a condemnation case for excessive damages was recognized in Helena Livingston S. R. Co. v. Lynch, 25 Mont. 497, 65 P. 919, and in State ex rel. State Highway Com. v. Speidel, 87 Mont. 221,286 P. 413, and the same rule applies in a proper case where there has been a view of the premises by the jury.
The evidence necessary to be considered on the question of the[5] amount of damages sustained by defendants, briefly summarized, was as follows: Defendants' entire lands consist of 1,040 acres which are operated as a unit and used as a cattle ranch. Eighty acres lie east of the new road and the remainder on the west. Most of the land east of the road is used as a pasture, on which there is water at all times and on which the ranch buildings are situated. The land on the west of the highway and railroad is used for the purpose of growing hay and grain, and on which there is no water in the winter. About 500 acres on the west of the road are under cultivation. The ranch will accommodate about 500 or 600 head of cattle. The road runs parallel to and abuts the railroad right of way on the east. In the usual operation of the ranch the hay is stacked on the west of the railroad and the cattle are there fed in the winter. It is not practical to get water on the west of the railroad in the winter, and the cattle are permitted to pass over the railroad to watering places on the east side of the railroad. There is but one train each way daily passing over the railroad and, in consequence, there is no inconvenience in permitting the cattle to drift at will over the railroad. There is evidence that it will not be possible to permit the cattle to drift over the highway from the west to the east for the purpose of reaching water, because of the attendant danger to the traveling public as well as to the livestock. There was evidence of the cost of hiring a man and saddle-horse to move the cattle back and forth from the feeding and watering places, but by its *Page 320 instructions the court advised the jury to disregard that evidence, and we need not give it further consideration.
There is no substantial conflict in the evidence as to the value of the land of defendants actually taken by plaintiffs for the road. That value was fixed by plaintiffs' witnesses at from $25 to $45 per acre, and there could be and is no complaint of the sum awarded by the jury for that item of damages. Plaintiffs' witnesses fixed the damages to the remaining portion of the ranch at $200 or $300. Defendants' witnesses fixed the damage to the remaining portions of the land at from $5,000 to $6,000. They gave no basis upon which to arrive at that figure, excepting the cost of hiring a man to drive the cattle back and forth between the place of feeding and the place of watering, which evidence, as above stated, the jury was instructed to disregard.
Plaintiffs' witnesses said there would be needed 84 rods of fence at $1.25 per rod, while defendants' witnesses testified there would be required 168 rods of fence, which defendants said would cost $1.50 per rod. The evidence, therefore, as to the extent of the damages to the remaining lands of defendants was sharply conflicting, and that of defendants was unsatisfactory, in that it failed to show the basis upon which the witnesses computed it.
It is not manifest to us that the court abused its discretion, under the circumstances here shown, in granting a new trial on the ground that the amount awarded by the jury was excessive. In consequence, the order appealed from is affirmed.
MR. CHIEF JUSTICE CALLAWAY, MR. JUSTICE MATTHEWS, HONORABLE WELLINGTON H. MEIGS and HONORABLE LYMAN H. BENNETT, District Judges, sitting, respectively, in place of JUSTICES GALEN and FORD, disqualified, concur. *Page 321