PJo. 85-270
IN THE SUPREME COURT OF THE STATF O F NONTRWA
1985
STATE O F MONTAPJA, a c t i n g by and
t h r o u g h the DCPAR?'EFT O F FJGHFiAYG
of t h e State o f bTontana,
F l a i n t i f f a n d Responden::,
3 e f e n d a n t s and A p p e l l a n t s .
APPEAL FPCPG: P k E i : ~ l c t C o u r t of the Thirteenth Judicial D i s t r i c t ,
Tn and for the County of Y e l l o w s t o n e ,
T h e H o n o r a b l e C h a r l e s L u e d k e , Zuclge p r e s i d i n g .
COUNSEL Oh' H.ECGRC :
For Appellant;
Petcscor, Fchcfield & L e c k i e ; K. D. Peterson,
B i l l i n g s , Montana
Fcr P e s p o r l d c n t :
Pfl. Gene FcLatchv, Dept. of B ~ - r ~ h w c i y s H e l e n a , Montana
,
- --. -. -
-
S u b m i t t e d on B r i e f s : S e p t . 1 9 , 1985
Jjecided: December 3 0 , 1985
- -- -- --- ----
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Adeline Donnes appeals from a judgment of the District
Court, Thirteenth Judicial District, Yellowstone County,
awarding her $700 as just compensation for the temporary
taking of a haul road on her ranch east of Billings.
A.ppellant alleges that the District Court erred in
failing to award. her all of the damages she suffered from the
haul road and gravel removal operations of the State Highway
Department. The State does not appeal a.ny portion of the
award.
Certain findings by the District Court are fatal to
appellant's position and there is nothing in this appeal to
counter those findings. We affirm the award of the District
Court.
The following facts are not in dispute. Donnes owns a
ranch between Pompey's Pillar and Custer, Montana. In Sep-
tember 1973, when the condemnation action was filed, her
ranch consisted of about 2,100 acres of deeded land and 200
acres of land leased from the State of Montana for agricul-
tural purposes. One provision of this lease reserved to the
State the right to enter the land and extract gravel. The
lease also allowed appellant to sublease hut only on the same
terms and conditions as her lease. Appellant paid the State
$750 per year (or $3.75 per acre per year) on the lease.
The other defendant in the condemnation action was
Joseph Ruff. He leased the deeded acreage of the ranch for
an annual rental of $13,000. As part of the lease terms,
Ruff ran some cattle owned by Donnes along with his own
stock. As to the State lease land, there was no actual
sublea.se hut only an understanding that since Joseph Ruff was
running some of defendant's cattle for her, he was free to
use the State lease acreage along with the fee land owned by
defendant. Ruff paid the annual rental of $13,000 throughout
the entire period relevant to this action. Ruff took no part
in the condemnation proceedings and claimed no damages.
The Department of State Lands granted the Highway
Department the right to extract gravel from forty acres of
the state lease for highway construction. In order to access
the gravel pit area, the Highway Department needed a tempo-
rary haul road. across appellant's fee property and began
condemnation proceed.ings for the .54 acres of land required
for the road. The District Court issued an order putting the
highway in possession in November 1973.
The case proceeded through discovery, negotiations, and
value commission hearing after which the commissioners deter-
mined appellant was entitled to $1,600 compensation. Donnes
appealed to the District Court, and the matter was tried to
the court without a jury. The District Court determined that
Donnes was entitled to $700 as just compensation for the
taking. That award includes $100 for the three-year easement
on the haul road and $600 for the loss of use to appellant of
forty acres of the state lease land for four years.
On this appeal, Donnes claims that the forty acres of
State lease land was worth $6.50 per acre per year rather
than the $3.75 per acre per year awarded by the District
Court. She also claims that the forty acres was lost to her
use for five years rather than the four years found by the
District Court. With respect to the remaining 160 acres of
State lease land, appellant claims that land was rendered
unusable for a period of three years because the unfenced
haul road left a forty-foot opening to the interstate through
which cattle would run. In addition to the State lease
lands, appellant claims 120 acres of her fee land was like-
wise rendered useless for ranching by the unfenced haul road.
Furthermore, appellant alleges that dust from the gravel pit
operations covered forage rendering another eighty acres of
her land useless for grazing, and that the loss of a11 of the
above land led to the loss of a 120-acre alfalfa field be-
cause of overgrazing. Finally, appellant claims that she is
entitled to $500 in this action for the cost of replacing a
bridge that was destroyed by the Department of Highway's
contractor prior to construction of the haul road.
Before dealing with the issues created by appellant's
contentions, we first note that the District Court was more
than fair to the appellant in considering her arguments.
Appellant made more extensive claims against the State in her
trial and post-trial submittals than those in the pre-trial
order. Even so, the District Court considered the inflated
claims in making its determination to insure fairness to
Donnes. The State has chosen not to appeal the award, so we
will not consider the propriety of these post-trial claim
alterations by appellant.
One conclusion by the District Court was particularly
damaging to appellant's case. The District Court noted that
in condemnation cases, compensation only accrues to the one
suffering loss or damage. The District Court then held, and
we agree, that when land is leased and any loss or damage
from a taking is to a temporary ability to use the land, it
is the lessee who is entitled to any compensation. Here, the
lessee, Ruff, paid the entire rental of $13,000 per year to
Donnes throughout the period for which Donnes is claiming
damages. Therefore, any damages for temporary loss of use of
the land Ruff leased from Donnes would accrue to Ruff rather
than Donnes. In light of this conclusion, we affirm the
District Court's denial of Donnesf claim as to the loss of
use of the 120 acres because the haul road was not fenced and
the eighty acres because of dust.
As noted by the District Court, matters are less clear
with respect to the 160 acres of State lease land that Donnes
also claims was lost to use because of the unfenced haul road
and gravel pit operations. Donnes claims that she was forced
to sel-1 some of the cattle she had in Ruff's care because of
insufficient forage. However, the District Court was not
presented with substantial evidence linking Donnes' cattle
sales to the loss of use of this particular 160-acre tract.
Nor is there evidence in the record sufficient to establish
the extent of Donnes' damages caused by the loss of use of
the 160 acres. Indeed, Donnes has not even established that
she lost the use of this land. The la-ndowner has the burden
in eminent domain proceedings to prove entitlement to just
compensation in excess of that offered by the condemnor.
State Highway Commission v. Marsh (19741, 527 P.2d 573, 575,
165 Mont. 198. The District Court correctly found that
Donnes has not met her burden with respect to the 160-acre
tract.
We will next consider the 120 acres of alfalfa that
appellant contends was destroyed by overgrazing because the
gravel pit activity diminished the availability of other
grazing acreage to feed the cattle. This acreage was under
lease to Ruff and was under his management. \J agree with
ie
the District Court that overgrazing of alfalfa to the point
of destruction would be a tort or a breach of contract as
between Donnes and Ruff. Any responsibility of the State
would be to the lessee, Ruff, who has not claimed any damag-
es. Appellant does not have a compensable claim in eminent
domain for any overgrazing of the alfalfa field.
As to appellant's claim that the forty-acre gra-vel pit
area was lost for five years rather than four years as found
by the District Court, we must affirm the District Court.
The record actually indicates that the area was lost to other
uses for a period of only three years. The recontouring and
seeding of the excavated area was successful within three
years of the time excavation began. Since the State has
chosen not to appeal the award of four years rental, we will
not reduce appellant's compensation.
Also with regard to the forty-acre pit area, appellant
claims that she should have been awarded $6.50 per acre per
year rather than the $3.75 per acre per year the District
Court awarded her. However, the rent she paid to the State
under the terms of her lease with the State for the land was
$3.75 per acre per year. Section 77-6-208, MCA, provides
that any sublease of State leased lands must not be upon
terms less advantageous to the sublessee than the terms given
by the State. The lease involved here contains a provision
that echoes the statute. Since it was Ruff that actually
utilized the land, the only loss possibly suffered by Donnes
was what she might have received by subleasing the property.
Because of the statute, she could not have suhl-eased the
property for more than $3.75 per acre per year. The State
has not appealed the issue of whether or not appellant was
entitled to any compensation for this land in a condemnation
proceeding. Therefore, we will uphold the District Court's
determination of just compensation for the gravel pit area.
Finally, we get to the $500 claimed by appellant as
damages for replacement of the bridge damaged from excessive
use by the highway construction contractors. Prior to the
taking of the haul road, contractors accessed the gravel pit
area by an alternate route which included the bridge. The
construction of the haul road ended the need for the contrac-
tors to use the bridge route. As such, the taking of the
haul road cannot be blamed for damages to the bridge. We
agree with Judge Luedke that this eminent domain action for
the haul road is not the vehicle by which appel-lant can
recover damages for the bridge.
We affirm the District Court's award of $700 to
appellant.
We concur:
Justices
Mr. J u s t i c e john C . Sheehy, d i s s e n t i n g :
Again t h i s woman h a s h e e n handed a g r o s s i n j u s t i c e from
t h e c o u r t s y s t e m o f Montana. See S t a t e v . Donnes (1980), 187
Kont. 338, 6 0 9 P.2d 1213.
T h i s woman h a s been d e p r i v e d of p r o p e r darr,ages i n the
c a s e a t b a r b e c a u s e t h e c o u r t s h a v e assumed t h a t t h e s t a t e
lanc?s which s h e l e a s e d were s u b l e a s e d t o J o s e p h R u f f . Yet
t h e r e i s no p r o o f of any s u c h s u b l e a s e . What t h e r e c o r d d o e s
shew i s t h a t s h e l e a s e d h e r deeded l a n d s t o J o s e p h Ruff for
a sum o f S1.3,OCC.GO per year, and t h a t h e was p e r m i t t e d t o
use the s t a t e lanes. P e r m i s s i v e u s e d o e s n o t amount t o a
.
sublease.
The amount of the award in this case is grossly
inadequate. I would reverse and remand for a new trial.