*1 By Through acting MONTANA, the DE STATE OF Montana, HIGHWAYS PARTMENT OF DONNES, Respondent, v. ADELINE and Jo Plaintiff Appellants. seph Ruff, Defendants 85-270. No. 19, Sept. 1985. on Briefs Submitted Decided Dec. 1985.

711 P.2d 805. *2 Peterson, Leckie, Peterson, Billings, for defend- Schofield & K.D. appellants. ants and Helena, McLatchy, Dept, Highways, plaintiff

M. Gene respondent. Opinion

MR. CHIEF of the JUSTICE TURNAGE delivered the Court. appeals judgment

Adeline Donnes of the District from District, County, awarding her $700 Thirteenth Judicial Yellowstone temporary taking road on as of a haul Billings. ranch east of failing to award

Appellant alleges that District Court erred from the haul road and her all of the she suffered Department. operations The State removal appeal any portion does not of the award. appellant’s posi- findings by are fatal

Certain the District Court findings. nothing tion there is in this to counter those We affirm the of the District Court. award ranch following dispute. Donnes owns a be-

The facts are not Custer, Pompey’s September Montana. tween Pillar filed, her consisted of the condemnation action ranch when was 2,100 land acres land leased from about acres of deeded and 200 agricultural purposes. provision the State of One Montana right to enter the land and ex- this lease reserved to the State the only gravel. but on tract lease also allowed sublease Appellant paid the State same terms and conditions her lease. (or year per year) $750 on the lease. Joseph action

The other in the condemnation Ruff. defendant He ranch for an annual rental of leased the deeded $13,000. terms, part of ran some cattle owned As the lease Ruff along with his own stock. to the State lease there As only understanding Joseph an since was no actual sublease but her, running Ruff he was free some of defendant’s cattle *3 by along use lease fee defend- the State with the land owned $13,000 paid throughout the entire ant. Ruff the annual rental of period part no in relevant to this action. Ruff took the condemna- proceedings damages. tion no and claimed Department Department granted Highway Lands the of State right forty the from acres of state lease for to extract the area, highway the the construction. order to access appel- Department temporary a haul across needed road for the property began proceedings fee .54 lant’s condemnation required issued an acres of land for the road. The District Court putting possession in in 1973. highway order the November discovery, negotiations, proceeded through value The case ap- determined hearing commission after which the commissioners pellant $1,600 appealed to compensation. Donnes the was entitled to jury. a matter to the court without District and the was tried to $700 The District that Donnes entitled Court determined just taking. compensation $100 the That award includes of to three-year haul the loss use $600 easement on the road and years. forty appellant the land for four of acres of state lease forty State appeal, claims the acres of lease On this Donnes per year the $3.75 worth rather than land was acre per year by awarded claims that the District Court. She also forty years the acres was lost to her use for five rather than the four years by respect remaining found the District Court. With land, appellant acres of State lease claims that land was rendered period years unusable for a the three because unfenced haul road forty-foot opening left a through to the interstate which cattle would lands, run. In addition to the lease State claims 120 acres her fee land was ranching likewise rendered useless for the Furthermore, unfenced appellant alleges haul road. that dust from gravel pit operations the forage rendering eighty covered another grazing, acres her land useless for and that the loss of all of the above land led the to loss of a 120-acre alfalfa field because of over- grazing. Finally, appellant claims that she is entitled $500 this action for the replacing bridge destroyed by cost of that was Department Highway’s prior contractor to construction of the haul road. dealing

Before contentions, with the appellant’s issues created we first note that the District appel- Court was more than fair to the lant in considering arguments. Appellant made more extensive against claims post her trial and trial submittals than pre-trial so, those in the order. Even the District Court considered in making inflated claims its determination to insure fairness to award, Donnes. The State has chosen not to so we will not propriety post-trial consider the of these claim alterations appellant.

One conclusion particularly the District Court damag ing appellant’s case. The District Court noted that in condemna cases, tion compensation only suffering accrues to the one loss or damage. held, The District agree, Court then and we that when land is leased damage loss taking temporary or from is to a abil ity to use any compensa it is the lessee who is entitled to Here, lessee, Ruff, tion. paid $13,000 per year the entire rental of throughout period claiming for which Donnes is dam ages. Therefore, any temporary loss of use of the land Ruff leased from Donnes would accrue to Ruff rather than Donnes. *4 light conclusion, of this we affirm the District Court’s denial of Donnes’ claim as to the loss of use of the 120 acres because the haul road was eighty not fenced and the acres because of dust. by Court,

As noted the District matters with are less clear respect to the 160 acres of State lease land that Donnes also claims was lost gravel pit to use because of the unfenced haul road and 186 the

operations. was to sell some of Donnes claims that she forced However, forage. cattle she had in Ruffs care because of insufficient link- presented District was not with substantial evidence the Court particular ing to loss of of this 160-acre Donnes’ cattle sales the use to the is in sufficient establish tract. Nor there evidence the record by of the 160 of Donnes’ caused the loss use of extent Indeed, use has that she lost the acres. Donnes not even established pro- in domain of this land. The landowner has the burden eminent prove ceedings excess of that entitlement to by v. Marsh State Commission offered the condemnor. (1974), 573, cor- 527 P.2d 575. The District Court Mont. rectly respect with to the found Donnes not met burden that has 160-acre tract. will alfalfa

We next consider the acres of that destroyed overgrazing the activ contends was because availability acreage to feed the ity grazing the of other diminished was his man cattle. This was lease to Ruff and under under al agement. overgrazing We that agree with the District Court point or a of con to the of destruction would be a tort breach falfa Any responsibility Ruff. tract between lessee, any Ap Ruff, damages. be to who has not claimed would pellant compensable a domain for does not have claim eminent any overgrazing of the alfalfa field. forty-acre gravel appellant’s pit claim area was

As to that years years for five rather four as found the District lost than actually The record indi we must affirm the District Court. period only that to other uses for a three cates the area lost was suc years. recontouring seeding The of the excavated area years Since the began. within the time excavation cessful three rental, years the award of four we State has chosen not compensation. appellant’s will not reduce area, forty-acre appellant claims pit regard Also with per per year rather been acre $6.50 that she should have awarded her. per year Court awarded $3.75 acre District than However, her lease paid State under the terms of the rent she to the per year. 77-6- Section with the for the land 208, MCA, must not provides leased lands that sublease State terms sublessee than the upon advantageous less be terms provision involved here contains given the State. lease actually utilized the was Ruff that echoes statute. Since it might have only was what she possibly loss suffered Donnes *5 statute, subleasing property. received Because of the she property could not have subleased the for more than per year. appealed The State has not the issue of whether or not appellant any compensation was entitled for this land a con- Therefore, proceeding. demnation uphold we will the District Court’s determination of area. Finally, get by appellant we to the damages $500 claimed replacement bridge damaged of the high from excessive use way road, construction contractors. taking Prior to the of the haul contractors accessed pit area an alternate route which bridge. included the The construction of the haul road ended the need for bridge such, the contractors to taking use the route. As of the haul road damages cannot be blamed for bridge. We agree Judge with Luedke that this eminent domain action haul road is not the vehicle which can recover bridge.

We affirm the District appellant. Court’s award of $700 to HARRISON, MR. JUSTICES WEBER and HUNT concur. SHEEHY, MR. JUSTICE dissenting: Again this woman gross has been injustice handed a from the court system of (1980), Montana. See v. Donnes 187 Mont. P.2d 1213.

This deprived woman has proper been damages in the case at bar because the courts have assumed that state lands which she leased were subleased Joseph proof Ruff. Yet there is no such sublease. What the record does show is that she leased her Joseph deeded $13,000.00 lands to per year, Ruff for a sum of permitted he was to use the state lands. Permissive use does not amount to a sublease.

The amount of the grossly inadequate. award in this case is I would reverse and remand for a new trial.