Apache County v. Udall, Civil 3072

• Decision Date: 13 July 1931
• Docket Number: Civil 3072
• Citation: 38 Ariz. 488,1 P.2d 340
• Parties: COUNTY OF APACHE, Appellant, v. H. G. UDALL and DORINDA UDALL, His Wife, Appellees
• Court: Arizona Supreme Court

1 P.2d 340

38 Ariz. 488

COUNTY OF APACHE, Appellant, v. H. G. UDALL and DORINDA UDALL, His Wife, Appellees

Civil No. 3072

Supreme Court of Arizona

July 13, 1931

APPEAL from a judgment of the Superior Court of the County of Apache. P. A. Sawyer, Judge. Judgment affirmed.

Mr Dodd L. Greer, County Attorney, for Appellant.

Mr. W E. Ferguson and Mr. J. Smith Gibbons, for Appellees.

OPINION

LOCKWOOD, J.

The county of Apache, hereinafter called plaintiff, brought suit against H. G. Udall and Dorinda Udall, his wife, hereinafter called defendants. The complaint in substance alleges that defendants are the owners of certain land in Apache county that for the purpose of properly conducting its affairs it is necessary for plaintiff to acquire an easement over the property of defendants for the construction and maintenance of a road thereon; that plaintiff and defendants are unable to agree as to the compensation to be paid therefor, and that this proceeding is instituted for the purpose of condemning such easement under the provisions of chapter 23, Revised Code of 1928.

Defendants appeared specially for the purpose of objecting to the jurisdiction of the court, but afterwards filed a general demurrer, which of course waived the plea to the jurisdiction of the person. The demurrer was sustained, and, plaintiff refusing to amend and defendant moving for the dismissal of the action, it was so ordered, and from the orders sustaining the general demurrer and dismissing this action this appeal was taken.

The action was avowedly brought under the provisions of sections 1329-1349, Revised Code of 1928, inclusive, which cover the general subject of eminent domain, and compose chapter 23 of that Code. Section 1329, supra, so far as we need consider it for our present purpose, reads as follows: "Subject to the provisions of this chapter, the right of eminent domain may be exercised by . . . a county . . . for the following uses . . . toll-roads, by-roads, plank and turnpike roads and highways. . ." (Italics ours.) Section 1335, supra, reads in part as follows: "Uses for which may be taken. Before property can be taken, it must appear that the use to which it is to be applied is a use authorized by law; that the taking is necessary to such use. . . ." While section 1338, supra, contains the following language: "Complaint; contents. The complaint must contain . . . a statement of the right of the plaintiff. . . ." The remainder of the chapter deals with the manner in which the right of eminent domain is to be exercised, which is, generally speaking, that which is attempted to be followed by plaintiff in this action.

We are of the opinion that under the language of sections 1335 and 1338, supra, when it is sought by a county to condemn a right of way for a "highway" under section 1329, supra, the complaint must show affirmatively that the steps necessary to establish a legal highway already have been taken. This may be done either by the direct allegation that the proposed road is of that character, or a statement of facts which show that as a matter of law it is. Since the complaint herein nowhere contains either form of allegation, the court properly sustained the general demurrer on the ground that the complaint did not state a cause of action under chapter 23, supra, and we might well affirm the order dismissing without any further discussion.

But counsel for plaintiff and defendants in their briefs both assure us that the real question before the trial court, and on which it based its ruling, was whether boards of supervisors are limited in condemning easements for county highways to the method of procedure set forth in section 1701, Revised Code of 1928, or whether they might also avail themselves of the provisions of chapter 23, supra. It is to be regretted that the pleadings were not drawn and the issues framed so that they specifically raise that question. But in view of the statement of counsel and the extreme importance of an early determination of the question, we shall assume for the purposes of the remainder of this decision that it is properly before us on this appeal.

Section 1701, supra, which it is contended by defendants is the only method under which supervisors may establish or alter highways for counties and condemn and appropriate public or private property therefor, is quite lengthy. It may be summarized as follows:

A petition must first be presented to the board of supervisors by ten or more resident taxpayers, or the governing body of a legal subdivision of the county, praying that the highway be established or altered, and giving the beginning, terminus, and general course or direction of the proposed highway. The board may reject the petition if it desires, or if it approves it, the following procedure is then followed: The county engineer is directed by the board to make a survey of the proposed highway and file a report of the survey, together with a map thereof. A day is set for a public hearing on the petition, and notice is given to all persons affected, in the manner provided in the statute. At the hearing the board considers the feasibility, advantages, and necessity of the proposed highway, and if in its opinion it is a public necessity the establishment thereof is approved and a board of appraisers is appointed, who appraise the property damage caused by the highway in the manner set forth in the section. The report of the appraisers is considered by the board in the statutory manner, and the petition is then either rejected or granted finally. When such final resolution and a map of the highway is filed in the office of the county recorder, it is then deemed to be established. An appeal may be taken by any claimant of compensation to the superior court in the manner provided by the statute, but the trial thereon goes only to the question of damages, and not to the establishment of the highway.

It will be seen by comparing this procedure with the provisions of chapter 23 that it is a special and carefully defined one for the specific purpose of establishing, altering or abandoning county highways, and securing rights of way thereto. We have held in the cases of Territory v. Richardson, 8 Ariz. 336, 76 P. 456, Tucson Consolidated Copper Co. v. Reese, 12 Ariz. 226, 100 P. 777, and Champie v. Castle Hot Springs co., 27 Ariz. 463, 233 P. 1107, that this was the only method of establishing public roads in Arizona at the time of the different decisions, although the Code in force then, in each case, contained in substance both the provisions of chapter 23 of the 1928 Code on eminent domain, and of section 1701, of the same Code, in regard to the establishment of roads by supervisors.

We are not unmindful of the fact that the Supreme Court of California, in the cases of Adamson v. Los Angeles County, 52 Cal.App. 125, 198 P. 52, and Los Angeles County v. Rindge Co., 53 Cal.App. 166, 200 P. 27, held that in California boards of supervisors might establish highways and condemn rights of way therefor under the provisions of their statute which are generally similar to section 1701, supra and also of those resembling chapter 23, supra. It appears, however, that in California section 4041 of the Political Code, which covers the general powers of supervisors, provides: "The boards of supervisors . . . shall have jurisdiction and power . . . to acquire and take by . . . condemnation . . . land for the uses and purposes of public roads, highways. . . ." And the decision in the Adamson case was expressly based, to a great extent, at least, on that provision. No such provision appears in the Arizona Code. Section 1241 of the Code of Civil Procedure of California is similar to section 1335, supra, so far as we have quoted the latter section above; but it has added thereto a clause which in substance authorizes boards of supervisors to determine the...