No. 12340
I N THE SUPREME COURT OF THE STATE O M N A A
F OTN
1974
BUTTE COUNTRY CLUB,
P l a i n t i f f and Respondent,
METROPOLITAN SANITARY AND STORM
SEWER DISTRICT N o . 1, a s p e c i a l
improvement d i s t r i c t ,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court o f t h e Second J u d i c i a l D i s t r i c t ,
Honorable James Freebourn, Judge p r e s i d i n g .
Counsel o f Record:
For Appellant :
Lawrence G . S t i m a t z , County A t t o r n e y , B u t t e , Montana
F o r Respondent :
McCaffery and P e t e r s o n , B u t t e , Montana
John L. P e t e r s o n a r g u e d , B u t t e , Montana
Submitted: J a n u a r y 1 4 , 1974
Decided :a
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Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal by defendant Metropolitan Sanitary and
Storm Sewer District,No. 1 from a judgment entered in the district
court, Silver Bow County, for plaintiff Butte Country Club.
Appellant Metropolitan Sanitary and Storm Sewer District
No. 1, (hereinafter referred to as Metro), was formed on December
30, 1964. The land of respondent Butte Country Club was included
within the district. As part of the district's improvements it
became necessary to lay a sewer line across the Country Club's
land. To this end negotiations were had to obtain an easement.
It is conceded by both parties that the Country Club filed a
declaratory judgment action against Metro on August 4, 1965, how-
ever that action was dismissed without prejudice the following day.
On November 21, 1966, the parties executed an agreement
entitled "AGREEMENT AND GRANT OF POSSESSION". Briefly, the
agreement recited that: the parties were unable, in good faith,
to agree on the value of the easement; the necessity for the
easement was undisputed; Country Club granted Metro the right to
enter and construct its line; since the value was undetermined,
an eminent domain action to determine such value was a possibility;
specifically provided that upon a final determination of such
value, either by negotiation or litigation, Metro would pay six
percent interest on that amount from the date of the agreement;
and, finally, the parties agreed nothing in the agreement was to
jeopardize any rights of either party under Montana statutes
governing the process of eminent domain proceedings. The sole
intent of the agreement was to grant possession; the only dispute
being the value of the easement,
Nothing further appears in the record until July 1, 1969,
when the Country Club filed a pleading entitled "Amended Complaint1'
under the same cause number as the original action of August 4,
1965. Service of the complaint was acknowledged by the attorney
f o r Metro, however no summons was e v e r i s s u e d . On J u l y 22, 1969,
Metro f i l e d a motion t o d i s m i s s on t h e grounds t h e complaint
f a i l e d t o s t a t e a c l a i m upon which r e l i e f could b e g r a n t e d . No
accompanying a f f i d a v i t o r b r i e f was f i l e d . The motion was over-
r u l e d on September 1 6 , 1969. T h e r e a f t e r Metro f i l e d i t s answer
on May 5 , 1970. On March 1 4 , 1972, a p r e t r i a l o r d e r approved
by t h e a t t o r n e y s f o r both p a r t i e s wa,s i s s u e d . T r i a l commenced
on March 16, 1972, and t h e r e s u l t was a v e r d i c t i n t h e amount
of $32,000 f o r t h e Country Club. Judgment was e n t e r e d f o r t h a t
sum, p l u s i n t e r e s t and c o s t s . From t h a t judgment Metro a p p e a l s ,
p r e s e n t i n g f i v e i s s u e s f o r review.
~ e t r o ' sf i r s t i s s u e i s t h a t t h e t r i a l c o u r t lacked j u r i s -
d i c t i o n t o h e a r t h e c a s e , b a s e d upon t h r e e t h e o r i e s :
(1). The o r i g i n a l complaint was withdrawn, without p r e -
j u d i c e , by t h e Country Club. The e f f e c t was t o r e s t o r e t h e
p a r t i e s t o a s t a t e a s though t h e s u i t had never been brought.
Thus when t h e "Amended Complaint" was f i l e d under t h e o r i g i n a l
cause number, t h e r e was n o t h i n g t o amend, hence t h e "Amended
~ o m ~ l a i n was a n u l l i t y .
t" W r e j e c t t h i s theory.
e
Rule 8 ( a ) , M.R,Civ.P., states:
"A pleading which s e t s f o r t h a c l a i m f o r r e l i e f ,
whether a n o r i g i n a l claim, c o u n t e r c l a i m , c r o s s -
c l a i m , o r t h i r d - p a r t y c l a i m , s h a l l c o n t a i n (1)
a s h o r t and p l a i n statement of t h e c l a i m showing
t h a t t h e p l e a d e r i s e n t i t l e d t o r e l i e f , and (2)
a demand f o r judgment f o r t h e r e l i e f t o which he
deems himself e n t i t l e d . R e l i e f i n t h e a l t e r n a -
t i v e o r of s e v e r a l d i f f e r e n t t y p e s may be demanded."
With r e f e r e n c e t o t h i s r u l e , t h i s Court s a i d i n B r o t h e r s
v. Surplus T r a c t o r P a r t s Corporation, Mon t . , 506 P.2d
1362, 1364, 30 S t . Rep. 265, 269:
11
Montana r u l e s o f c i v i l procedure, based on
f e d e r a l r u l e s , a r e e s s e n t i a l l y n o t i c e pleading
s t a t u t e s r a t h e r than t h e more formal code o r
f a c t pleading s t a t u t e s i n e f f e c t i n many j u r i s -
d i c t i o n s . 11
See: Wright & M i l l e r , F e d e r a l P r a c t i c e and Procedure: C i v i l
We have reviewed the "Amended Complaint" and find it
satisfies the notice, as well as all other requirements of
Rule 8 a ,
() M.R,Civ.P., and is a valid, initial complaint.
(2) Assuming the "Amended Complaint must be taken as
a new complaint, Metro maintains that even though service of
the complaint was acknowledged, a summons was not issued. It
need not have been.
(3) Metro contends the "Amccnrled Complainttf, valid,
if
states a claim barred by the statuee of limitattom, secr:i.on 93-2607
(2), R.C.M. 1947. That section provides a two year sta(:ute of
limitations for injury to real property. Since the "Amended
Complaint1'was filed on July 1, 1969, more than two years after
the actual construction of the sewer line, Metro contends the
statute of limitations is applicable.
Rule 8 c ,
() M.R.Civ.P., requires the defense of the
statute of limitations to be pleaded affirmatively, and if it
not, it will be held to have been waived. Hansen v. Kiernan,
159 Mont. 448, 499 P.2d 787; Wright & Miller, Federal Practice
and Procedure: Civil 5 1278. Metro's first issue on appeal
is without merit.
The second issue raised is that the Country Club waived
its right to sue separately for damages because of its noncom-
pliance with the provisions of section 16-1610, R.C.M. 1947.
The procedures found in section 16-1610, R.C.M. 1947, are made
applicable to metropolitan sanitary and/or storm sewer districts
by section 16-4413, R.C.M. 1947. Section 16, 1610, R.C.M. 1947,
requires landowners who claim that their property will be damaged
by a district's improvements must file written objections with
the county clerk within sixty days of the awarding of a contract
for construction of such an improvement. If no written objection
is filed, the landowner is held to have waived his claim for
damages. Since no written objection was filed with the county
clerk, Metro contends the Country Club waived its right to sue
for damages.
This argument is raised for the first time on this appeal.
It has long been the rule that issues not raised at the district
court level will not be considered here. Spencer v. Robertson,
151 Mont. 507, 445 P.2d 48; Davis v. Davis, 159 Mont. 355, 497
P.2d 315. This same rationale applies to ~etro's third issue--
that the pretrial order of the district court, approved and
signed by counsel for both parties, was incomplete, misleading
and prejudicial. We find Metro's second and third issues to be
without merit.
In its fourth issue, Metro contends the district court's
refusal to give ~etro'soffered instruction A was error. That
instruction would have instructed the jury that the taking of
the property was done under the police power of the state, which
would have lead to the conclusion the Country Club was due nominal
or no damages at all.
That the agreement conveyed to Metro an easement is clear.
It is referred to as such in the written agreement and was so
denominated by the district court in its instructions to the jury.
Those instructions were not objected to. This Court has previously
held that an easement is a property right within the constitutional
guarantee that private property may not be taken for public use
without payment of just compensation. City of Missoula v. Mix,
123 Mont. 365, 214 P.2d 212; Colarchik v. Watkins, 144 Mont. 17,
393 P.2d 786. It was not error to refuse ~etro's offered instruc-
tion A.
~etro's fifth issue---that the verdict of $32,000 was
excessive---is apparently based on the premise there was no
valid credible evidence before the jury upon which it could base
its verdict. We have said before that we will not disturb a
jury verdict or a judgment based thereon, where there is substan-
tial credible evidence to support them. State Highway Commission
v. Vaughan, 155 Mont. 277, 281, 287, 470 P.2d 967.
The Country Club's primary witness was Jack McLeod, an
expert witness in the field of real estate appraisal, who testified
that he looked at the overall market to determine what similar
easements were negotiated and what they sold for in the Butte
area. He testified as to the values of five easements granted to
the Anaconda Company for a water line to one of its installations.
These values were for easements upon different types of property,
ranging from pasture land to urban property. In reaching his
judgment McLeod felt the Country Club easement was worth less
than those in the urban areas, but more than those found in more
rural areas. It was his opinion that the easement in question
was worth a total of $48,000. The foregoing is in accord with
what this Court said in Vaughan:
"The valuation experts in their testimony brought
out that any given tract of land, being a unique
commodity, was not exactly comparable to any other
tract of land and that the duty of the appraiser
was to select sales of land as nearly comparable
as possible and adjust his estimate of value of
the subject property accordingly. Weaknesses in
expert valuation testimony derived from comparable
sales go to the weight of the expert's testimony
with the jury. State Highway Comm. v. Wilcox,
155 Mont. 176, 468 P.2d 749; State Highway Comrn.
v. Jacobs, [I50 Mont. 322, 435 P.2d 2741. The
basis for the opinion of Neil and Sparhawk as to
value and the reasons for using the r comparable
sales' they used in arriving at such value was
before the jury which could give such opinions
the weight it deemed them entitled or could re-
ject them altogether if it considered them unsound."
Here, the jury came to a result between the two extremes
testified to -- $48,000 and $0. We find substantial credible
evidence to support its finding and will not disburb it.
The judgment is affirmed,
We-Concur :
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