Bugbee v. Superior Court of Arizona In and For Maricopa County

• Decision Date: 14 May 1928
• Docket Number: Civil 2727
• Citation: 34 Ariz. 38,267 P. 420
• Parties: MIRIAM BUGBEE and CLINTON H. BUGBEE, Husband and Wife, Petitioners, v. THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA, JOSEPH S. JENCKES, Judge, and the ROOSEVELT IRRIGATION DISTRICT, a Corporation, Respondents
• Court: Arizona Supreme Court

267 P. 420

34 Ariz. 38

MIRIAM BUGBEE and CLINTON H. BUGBEE, Husband and Wife, Petitioners, v. THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA, JOSEPH S. JENCKES, Judge, and the ROOSEVELT IRRIGATION DISTRICT, a Corporation, Respondents

Civil No. 2727

Supreme Court of Arizona

May 14, 1928

Original proceeding for Writ of Cetiorari. Writ issued and upon a final hearing, quashed.

Mr James E. Nelson, for Petitioners.

Messrs Armstrong, Lewis & Kramer, for Respondents.

OPINION

ROSS, C. J.

The Roosevelt Irrigation District, a corporation organized under the laws of the state (chapter 149, Laws 1921 and amendments thereto) for the purpose of supplying water for the irrigation of certain lands of such district, instituted in the Superior Court of Maricopa county a suit, against Miriam Bugbee and Clinton H. Bugbee and others, to condemn a right of way for its proposed canal over the Bugbee's farm. On the application of the irrigation district to be put into immediate possession of the property, a hearing was had before the court, at which all interested parties were present. The court heard evidence as to the probable damages to the land, and fixed such damages at $3,500, and directed that double that amount be deposited with the clerk of the court to be disposed of in accordance with the terms of paragraph 3080, Civil Code of 1913, such paragraph being a part of the eminent domain statute. The $7,000 was deposited with the clerk, and the irrigation district was by the court's order let into the possession and full use of the right of way, consisting of 2.7 acres.

The Bugbees there upon applied to this court for a writ of certiorari against the Superior Court and the Roosevelt Irrigation District, alleging as a ground and reason therefor, that the provisions of paragraph 3080, supra, giving plaintiff in a condemnation proceeding, before the payment of damages the ascertainment thereof, the right of immediate possession and use, is unconstitutional and void, and that all proceedings thereunder were without and beyond the court's jurisdiction.

This contention requires inquiry into the meaning of the following sentence, found in section 17, article 2, of the Constitution:

"No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right of way shall be appropriated to the use of any corporation other than municipal, until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation which compensation shall be ascertained by a jury, unless a jury be waived as in other civil cases in courts of record, in the manner prescribed by law."

It is plain from this provision that the court's order, putting Roosevelt Irrigation District into the immediate possession of the property before the damages were paid or ascertained is void, unless such district is a municipal corporation within the meaning of such provision. "Any corporation other than municipal" cannot appropriate a right of way "until full compensation therefor be first made," etc. This is to say that a municipal corporation can be put into possession proper proceedings before compensation is made or ascertained. If we should give to the word "municipal" its primary meaning, only cities and towns would be privileged to take immediate possession of a desired right of way pending condemnation. 19 R.C.L. 691, § 3. In it restricted sense "municipal" does not include the state, or a county, or a school district, and yet the reason that cities and towns should be favored applies as well to these other public quasi-municipal corporations. "Municipal" in its present context has a very much broader meaning than its primary or that ordinarily given. It certainly comprehends the state, counties, and school districts as well as cities and towns. It was doubtless intended that when the public, as contradistinguished from private interests, needed a right of way, it might be put into immediate possession and the matter of damages cared for when funds were available for that purpose. Public or...