City of Phoenix v. Wade

• Decision Date: 05 June 1967
• Docket Number: No. 1,CA-CIV,1
• Parties: CITY OF PHOENIX, a Municipal Corporation, Appellant, v. F. B. WADE and Oma Wade, husband and wife, Appellees. 336.
• Court: Arizona Court of Appeals

Page 450

428 P.2d 450

5 Ariz.App. 505

CITY OF PHOENIX, a Municipal Corporation, Appellant, v. F. B. WADE and Oma Wade, husband and wife, Appellees.

No. 1 CA-CIV 336.

Court of Appeals of Arizona.

June 5, 1967.

Rehearing Denied July 5, 1967.

Petition for Review Dismissed Sept. 26, 1967.

Merle L. Hanson, City Atty., by Morris Rozar, Asst. City Atty., for appellant.

Christy, Kleinman, Hoyt & Fuller, by William G. Christy and Forrest T. Hoyt, Phoenix, for appellees.

LAWRENCE HOWARD, Superior Court Judge.

This is an appeal by the City of Phoenix from a jury award in a condemnation proceeding. Approximately twenty years prior to the time the eminent domain proceedings commenced, the appellees purchased vacant land located at the southwest corner of the intersection of West Dunlap Avenue and North Seventh Avenue in Phoenix, Arizona. At that time Dunlap Avenue was known as Olive Road and was a narrow, unpaved road which ended at Seventh Avenue. Both Dunlap and Seventh Avenue were dedicated to a width of 66 feet with a 50-foot paved strip down the center of the right-of-way. The appellees constructed a two-story dwelling on the northeast corner of the property in 1947 setting it back about 17 feet from the right-of-way of Dunlap Avenue. A carport was attached to the dwelling and appellees also constructed a detached garage with a workshop built at the side. The width of the workshop and garage was approximately 12.1 feet. Being misinformed as to the exact location of the original right-of-way line of West Dunlap, the appellees built 3.7 feet of this improvement on the dedicated right-of-way of West Dunlap. Prior to the construction of the new highway, the appellees had access to their property all along Dunlap Avenue. The City, in widening Dunlap Avenue and North Seventh Avenue, took an additional 7-foot strip on the north side of the property along Dunlap Avenue and an additional 7 feet along the east side of said property adjacent to North Seventh Avenue. In the 'before' situation that part of appellees' property adjacent to North Seventh Avenue was separated from North Seventh Avenue by an open irrigation ditch approximately 7 feet wide. There was no physical means of crossing this ditch by motor vehicle.

In the 'after' situation the northeast corner of appellees' property was rounded off, and a triangular piece approximately 10 feet across was taken for road purposes. Three separate lanes for east-bound traffic were then installed on the south half of Dunlap Avenue, the third lane being immediately adjacent to appellees' property. Both West Dunlap and North Seventh Avenues were paved to their full extent and curbs were installed along Dunlap Avenue. 'No Parking' signs were erected along North Dunlap Avenue to prevent anyone from parking adjacent to appellees' property. Four traffic signals were installed at the intersection of West Dunlap and North Seventh Avenues. A curb cut was provided on West Dunlap Avenue at the point of the existing driveway into the appellees' covered carport. Double lines were placed down the center of West Dunlap Avenue which prevented traffic going west on Dunlap Avenue from turning left into the subject property. In the after situation the driveway into the carport was just long enough to permit the appellees to turn off West Dunlap and pull their vehicle into the carport. This left appellees with a distance of 10 feet from the new right-of-way line to the entry of their carport. In order for a vehicle in the carport to go from the carport to West Dunlap it is necessary that the vehicle be backed out into the street. Whereas Dunlap Avenue formerly terminated at North Seventh Avenue, the new construction extended West Dunlap Avenue in an easterly direction across the Grand Canal to North Third Avenue.

The matter was submitted to a jury to determine the value of the land taken and the amount of severance damages, if any, to the remaining portion of appellees' property. The jury returned a verdict in favor of the appellees in the sum of $2,700.00 for the part taken and $5,000.00 for severance damages.

The appellant presents the following questions to the Court:

(1) Whether on the facts of this case it was entitled to have the jury instructed:

'You are further instructed that in your deliberations as to the amount of compensation to be awarded to the defendants, if any, you shall disregard any evidence upon, and shall not consider the following:

'1. The installation of 'no parking' signs and a curb along the South of Dunlap Street at its intersection with 7th Avenue.

'2. The stop light installed on 7th Avenue and Dunlap Street.

'3. The painted double yellow lines which divide Dunlap into lanes for east-bound west-bound traffic.

'4. The increase or decrease of the flow of traffic at the intersection of 7th Avenue and Dunlap Street.'

(2) Whether the verdict is excessive and not justified or supported by the evidence.

The appellants offered the instruction on the theory that the acts set foreth in the instructions were valid exercises of the police power. Being an exercise of the police power the appellant contends that any diminution in value to the appellees' property attributable to such an exercise is noncompensable. The appellant contends that since the items are noncompensable the jury should have been instructed to disregard them in arriving at its decision.

When the city makes a reasonable and rational exercise of its police power in the control of traffic upon its streets, any damage resulting is noncompensable. Rayburn v. State, 93 Ariz. 54, 378 P.2d 496 (1963); Gear v. City of Phoenix, 93 Ariz. 260, 379 P.2d 972 (1963).

In the proper exercise of its police power in the regulation of traffic, a city, state or county may do to an abutting property owner many things which are noncompensable, such as constructing a traffic island, placing permanent dividing strips which deprive an abutting owner direct access to the opposite side of the highway, painting double lines on the highway, increasing or decreasing the flow of traffic on the street, and installing 'No Parking' signs. State v. Rayburn, supra; People ex rel. Department of Public Works v. Ayon, 54 Cal.2d 217, 5 Cal.Rptr. 151, 352 P.2d 519 (1960); State Highway Comm. v. Ralston, 226 Or. 143, 359 P.2d 529 (1961); City of Decatur v. Robinson, 251 Ala. 99, 36 S.2d 673 (1948).

In Gear v. City of Phoenix, supra, the court held that an ordinance regulating curb cuts and sidewalk driveway crossings is a valid exercise of the police power when it is fairly appropriate to its purpose and not destructive of inherent rights. The appellees contend that before the improvements were constructed they could drive off their property at all points directly to West Dunlap Avenue without the necessity of backing up into the street. There was testimony by the landowner that in the before situation they at times would use the driveway and back out into the street, and there were times when they would drive off the property at a point near the corner of the intersection of West Dunlap Avenue and North Seventh Avenue. The only way that landowners can get from their property to the street in the after situation is by backing up out of the carport into the street. State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 350 P.2d 988 (1960), states that either the Destruction or Material impairment of the access easement of an abutting owner is compensable. This landmark Arizona case does not state that the landowner has a right of access to his land at all points in the boundary between it and the highway.

Owners of property abutting a street or highway cannot, without just compensation, be deprived of all access by...