Blanton & Co. v. Transamerica Title Ins. Co., 6029--
| Decision Date | 23 June 1975 |
| Docket Number | No. 2,No. 6029--,A,CA-CIV,6029--,2 |
| Citation | 24 Ariz.App. 185,536 P.2d 1077 |
| Parties | BLANTON AND COMPANY, an Arizona Corporation, Appellant, v. TRANSAMERICA TITLE INSURANCE COMPANY, as Trustee under Trustppellee. 1781. |
| Court | Arizona Court of Appeals |
Did the trial court apply an incorrect measure of damages for trespass upon appellee's realty? That is the sole question involved in this appeal.
Transamerica Title Insurance Company, as trustee of a 340 acre tract of land, brought an action in trespass against Lawyers Title of Arizona, as trustee of an adjoining parcel of realty, for the destruction of a 2.5 acre portion of the tract and damages for the diminished value of the remainder. Transamerical also sought restitution for the reasonable value of 9700 cubic yards of fill removed from its property. Lawyers Title filed a third-party complaint against Blanton and Company, and both admitted liability for the trespass. The sole question, therefore, was the quantum of damages. The case was tried to the court, sitting without a jury, and appellee was awarded the sum of $67,300, which consisted of the following:
'(1) $1.50 per cubic yard for the intentional removal of 9,700 cubic yards of soil, or $14,550;
(2) $7,500 per acre for the destruction of 2 1/2 acres from which the 9,700 cubic yards were removed, or $18,750;
(3) $100 per acre for the depreciation in value of the remaining 340 acres of the unitary tract from which the 9,700 cubic yards were removed, or $34,000.00.'
The trial court indicated in the judgment that Item (1) represented compensation for the value of the soil itself; Item (2) represented compensation for the destruction of approximately 2 1/2 acres of land; and Item (3) represented compensation for the depreciation in value of the remaining acreage of the tract of which the 2 1/2 acres formed a part.
The following picture depicts the respective locations of the subject properties. The 2.5 acre parcel, triangular in shape, fronts on Tangerine Road and is separated from the remainder of the tract by the Canada del Oro watercourse, which runs in a southwesterly direction through the southeastern corner of the tract. As pointed out by appellee, this parcel can best be described as a right-angle triangle bounded on the east by Tangerine Road, on the south by the Lawyers Title property, with the Canada del Oro forming the hypotenuse. Were it not for this 2.5 acre parcel Lawyers Title would have owned all of the triangular parcel of property bounded by the Canada del Oro, Tangerine Road and Lambert Lane.
The evidence in support of the judgment reflects the following. In order to obtain rezoning, Lawyers Title employed Blanton to construct a dike and to increase the height of its land by three feet. Blanton mistakenly directed the earth-moving contractor to obtain the required fill from the 2.5 acre parcel of Transamerica's property. Prior to the excavation, this parcel was approximately level with the adjoining property belonging to Lawyers Title, but after the earth removal, the height of Transamerica's property was decreased by three feet and the height of the Lawyers Title property was increased by three feet, thus creating a six-foot embankment between the properties. Additionally, the decreased height of Transamerica's property made it lower than the Canada del Oro and therefore subject to possible flooding. The old, stabilized stream bed of the channel had been destroyed--there had been no flooding during the 16 years prior to the excavation but there had been some flooding subsequent thereto. The change in grade of both properties, the building of a berm on the Lawyers Title property and the instability of the channel supported the conclusion that the 2.5 acre triangle was subject to increased runoff and flooding.
Although the Canada del Oro separated the small 2.5 acre parcel (which lay at the vortex of the 340 acre tract) from the remainder, Transamerica presented testimony to show that the economic value of the remainder was conditioned upon the ability to use the triangular parcel for commercial enterprise because of its frontage on Tangerine Road. Further, that the portion of Transamerica's property fronting on Tangerine Road north of the triangular parcel could not be used for commercial enterprise to service the area because of the topography. Commercial enterprise was...
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