Busby v. State ex rel. Herman
| Citation | 420 P.2d 173,101 Ariz. 388 |
| Decision Date | 03 November 1966 |
| Docket Number | No. 7806--PR,7806--PR |
| Parties | Dorrity E. BUSBY and Shirley K. Busby, his wife, Appellants, v. The STATE of Arizona ex rel. Justin HERMAN, Director of Arizona Highway Department, Appellee. |
| Court | Arizona Supreme Court |
Houston & Brown, Tucson, for petitioners-appellants.
Darrell F. Smith, Atty. Gen., by Robert S. Tullar, Sp. Asst. Atty. Gen., for respondent-appellee.
This petition for review was accepted to review a decision of the Court of Appeals, Div. 2, 2 Ariz.App. 451, 409 P.2d 735.
Appellants (petitioners Dorrity E. Busby and Shirley K. Busby, husband and wife) appealed from an order of the Superior Court of Pima County denying their motion for new trial after entry of judgment in their favor for parcels of realty taken by the state. The issue submitted to the jury by the trial court was the amount of compensation to be paid the defendant property owners. The trial court instructed the jury that the parcels involved had no access to the highway and that the jury was not to consider access rights in determining the fair market value of the property.
The trial court charged the jury, in part, as follows:
'In this case, in determining the fair market value of the defendants' property, you are instructed that as a matter of law the defendants' property did not have any access to the Tuscon Freeway by way of 34th Street or the alley adjoining the property on the south.
'You are further instructed that the East boundary of defendants' property never had direct access to the Tucson Freeway.'
We have accepted review of petitioners' Busby claim that the State of Arizona destroyed part of the access rights to 34th Street, a street on which some of their 'West' property abutted (as shown by the attached map), by placing a fence along the highway, thus closing off the east end of 34th Street and creating what amounts to a cul-de-sac.
We have also accepted review of Arizona State Highway Department's petition for rehearing on the grounds that the State Highway Department, by construction of a fence in 1949 across appellants' property and maintenance of the fence on the east side of the highway between the highway right of way and property of petitioners, established adverse possession for a period of more than ten years, and therefore any claim of the appellants is barred by the prescriptive right gained by the state of Arizona to any rights of ingress or egress that petitioners might have had as it related to the property on the east side.
The principal issue before the court is, did the court correctly instruct the jury that petitioners had not sustained any damage for loss of access from any of the parcels of land involved in the action?
This issue is divided into two parts: the first pertains to the two pieces of property on the east side of the freeway; the second pertains to the property on the west side. This Court will first consider the issues raised in reference to the property situated on the east side.
The State contends the undisputed evidence shows that since 1949 a fence has been maintained by the State across petitioners' property located on the east side of the freeway and that this fence completely deprived the property of access to the freeway. Petitioner Shirley K. Busby testified in regard to this matter, as follows:
'Q In 1949 the State of Arizona condemned for that freeway and took some of the lots in their entirety and left you these pieces?
'A Yes.
'Q And you were paid in full for that, were you not?
'A They paid us, yes.
'Q And at that time they put up the fence along the right of way running from 34th past both pieces, and that fence has been there ever since?
'A Yes.'
It is clear that this testimony pertained to 'both pieces' on the east side of the freeway. This conclusion is further sustained by the testimony on the previous page of the transcript where Mrs. Busby, in answer to the question: , answered: 'I think that sounds about right.'
The condemnation action in this proceeding was commenced on April 28, 1961, more than ten years after the fence was constructed by the State, and after the State had condemned the land for the freeway. Section 12--526, A.R.S., provides for a ten-year limitation of action when a right in real property is taken by adverse possession. This is also the applicable statute of limitations pertaining to condemnation actions. The conduct of the prior owner and the petitioners show that during this entire period of time the right of ingress and egress from the lots on the east, to the freeway right of way, that had been acquired by the State, had been cut off. Therefore petitioners have lost any rights they may have had for access to the freeway from the east property, and they are barred by the prescriptive right gained by the State of Arizona.
The action of the State in enclosing the right-of-way with the fence and the acquiescence by the petitioners shows that the right of access to the freeway for ingress or egress from the east has been extinguished by the State. Maricopa County Municipal Water Conservation Dist. No. 1 v. Warford, 69 Ariz. 1, 206 P.2d 1168; Long v. City of Tulsa, 199 Okl. 217, 184 P.2d 800.
It should be noted that prior to 1949 a highway did not exist in the area now occupied by the freeway, and that the freeway is entirely a new highway. The Court is not dealing with the creation of a control access highway which is being built over the old, conventional highway. Therefore, there can be no loss of access rights where a highway did not previously exist. State v. McDonald, 88 Ariz. 1, 352 P.2d 343. The establishment of a new control access highway does not deprive a property owner of the right of access and he is not entitled to compensation for a claimed taking of a right that never existed. Lehman v. Iowa State Highway Commission, 251 Iowa 77, 99 N.W.2d 404; Morris v. Mississippi State Highway Commission, 240 Miss. 783, 129 So.2d 367. See also the Arizona case, State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 350 P.2d 988.
We are of the opinion the trial court correctly held that petitioners did not have any access rights to the freeway from the east property.
Petitioners contend the property had a right of access to 34th Street which included the right of passage to the Casa Grande-Tuscon highway which had never been conveyed to the state. Petit...
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