Deer Val. Indus. Park Development & Lease Co. v. State ex rel. Herman

• Decision Date: 24 February 1967
• Docket Number: No. 2,CA-CIV,2
• Citation: 424 P.2d 192,5 Ariz.App. 150
• Parties: DEER VALLEY INDUSTRIAL PARK DEVELOPMENT AND LEASE COMPANY, an Arizona corporation, Thomas G. Boskon and Helen Boskon, his wife, Appellants, v. STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellee. 267.
• Court: Arizona Court of Appeals

Page 192

424 P.2d 192

5 Ariz.App. 150

DEER VALLEY INDUSTRIAL PARK DEVELOPMENT AND LEASE COMPANY, an Arizona corporation, Thomas G. Boskon and Helen Boskon, his wife, Appellants, v. STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellee.

No. 2 CA-CIV 267.

Court of Appeals of Arizona.

Feb. 24, 1967.

Rehearing Denied March 22, 1967.

Review Denied May 9, 1967.

Dunseath, Stubbs & Burch, by Robert C. Stubbs, Tucson, for appellants.

Darrell F. Smith, Atty. Gen., Stanley Z. Goodfarb, Sp. Asst. Atty. Gen., Phoenix, for appellee.

MOLLOY, Judge.

This is an appeal by the property owners from a judgment rendered in their favor in a condemnation action. The property involved in the 'before' situation was a quarter section of land through which an existing highway (US Highway 60, 70 and 89) passed diagonally in a southeast-northwest direction. In this condemnation action the right-of-way was widened to a full 300-foot width, in order to permit a divided highway with two separate strips of pavement. Previously there had been a single strip of pavement carrying traffic in both directions.

In order to gain the full 300-foot right-of-way, it was necessary to condemn a strip of land along the southwest border of the highway 50-foot in width and approximately one-half mile in length. On the northeast border of the highway, a strip varying in width from 100 to 150 feet was condemned for the approximate one-half mile distance. The total property actually taken was 11.7 acres and it is over the value placed upon this acreage that the points of dispute in this case arise.

In the 'after' situation, access to the new highway was not to be controlled, so that the remaining land of the property owners had frontage on the new highway for substantially the same length on each side as in the 'before' situation.

There is no evidence in the record that the strips of land condemned were of any greater value than the remaining acreage, except for such special value as they might have by reason of their frontage on the interstate highway in question. Both of the appraisers testifying for the property owners gave special value to these strips by reason of their proximity to the highway. In their opinion, land fronting along this highway in the 'before' situation, with a depth of 400 feet, had a value of $60 per front foot. This would place a value on the front 400 feet of approximately $6600 per acre, but the property owners' appraisers valued this frontage at $8500 per acre because in their opinion the front part of this 400 feet had greater worth than the rear. From this computation, they arrived at the value of $112,030 for the part taken.

With two exceptions, all comparable sales used by the property owners' appraisers were tracts of land considerably smaller than 160 acres in size. One exception was an 80 acre parcel bisected diagonally by the same highway and lying approximately two miles northwest of the subject property, which was sold for a price of $1,000 per acre. The other exception was a sale of 200 acres of land at Florence Junction, which land had frontage at this intersection of major highways. This latter sale was for a gross price of $1,600 per acre. The remaining comparables used by the property owners' appraisers ranged from 7.1 acres in size to 2.01 acres and the sales prices from $10,890 an acre to $6,250 per acre. Each of these parcels had frontage on the highway in question, and in each case the property sold had considerably less depth than the subject property.

The only other evidence as to the value of the property taken came from the state's appraiser, who used as comparables the sales of tracts of land with frontage on the subject highway, ranging in size from 640 acres down to 80 acres, and with sales prices varying from a high of $1,600 per acre to a low of $353.13 per acre.

The state's appraiser gave an overall valuation to the subject property of $1,000 per acre and appraised the land taken at the same price, without any allowance for frontage value. This value of $11,700 was accepted by the jury as being the value of the land taken. In addition the jury found severance damages of $8,500 as to which there is no dispute on appeal.

The state's appraiser admitted on cross-examination that smaller parcels of land usually sold for more money than larger tracts. He opined, however, that the subject property should be considered as a whole and that the strip of land in question had no special value above the average of the whole.

After judgment on the jury verdict, the property owners moved for a new trial contending that the verdict of the jury was not supported by substantial evidence. Their contention was based upon the premise that the property taken should have been appraised, not as part of the whole, but as a separate smaller tract of land as to which the only true comparable sales were the smaller ones testified to by the property owners' appraisers. It is their view that there was no substantial basis for attributing to the strip of land in question the average value of the entire tract owned by the property owners, and that therefore, as a matter of law, there is no basis for the jury's verdict.

The state's first response to this contention is that it was not raised until after he case had been tried and submitted to a jury on instructions, given without objection, that the jury could find the value of the parcel taken to be an amount '* * * anywhere between the highest and the lowest estimates which may be arrived at by using the various factors appearing in the testimony in any combination which is reasonable.'

It is the general law that:

'* * * a question or objection may not be raised for the first time on a motion for a new trial, and a party may not speculate on the verdict by failing to raise a matter as to which he has knowledge and then raise it for the first time on a motion for a new trial.'

66 C.J.S. New Trial § 13b, p. 104.

In our own state, we have the following pronouncement from our Supreme Court:

'Parties may not sit by and allow error Which is not fundamental to be committed, without protesting and asking the trial court to correct the error at the time, and then later, when the judgment goes against them, ask for a new trial on that ground.' (Emphasis added)

Southern Arizona Freight Lines v. Jackson, 48 Ariz. 509, 518, 63 P.2d 193, 197 (1936).

Our Supreme Court has not as yet laid forth the complete guide lines as to what may constitute 'fundamental error.' In Trojanovich v. Marshall, 95 Ariz. 145, 146, 388 P.2d 149, 150 (1963), our Supreme Court held that the failure to properly instruct on contributory negligence was fundamental error which would be raised by the Supreme Court for the first time on appeal, and on its own motion. In connection with this ruling the court said:

'The giving of the following instruction constituted fundamental and reversible error In that it deprived appellant of a constitutional right.' (Emphasis added)

95 Ariz. at 146, 388 P.2d at 150.

In any condemnation action we are concerned with Article 2, Section 17, of our Constitution, A.R.S. which reads in part:

'No private property shall be taken or damaged for public or private use without just compensation having first been made, * * *.'

If the contentions of the property owners here be correct, that is, if the portions of land taken have special value as frontage under applicable law, then the property owners have been seriously deprived of adequate compensation. All of the evidence in this record clearly substantiates the fact that land in the general area concerned, without highway frontage, has substantially less value than land with frontage, and that the wide difference in value between the estimates of the property owners' appraisers and that of the state's appraiser has a solid factual basis depending upon whether it is considered that 'frontage' has been taken in this action.

By reason of the special nature of eminent domain proceedings, which takes property against the will of the property owner and because a constitutional right is involved, we hold that the contention of the property owners should be considered on appeal, though raised for the first time on a motion for new trial.

But though we believe the property owners' position is of such serious substance that it merits consideration, we are unable to accept it as being a valid concept.

We first examine the property owners' contention that the only true comparables for the land taken in this case are smaller tracts of land similar to the size of the parcels actually taken. In our view, this argument fails for two reasons. In the first place, there is no showing that these particular strips of land had any particular value as separate parcels. The closest that the testimony comes to any such evidence is the following:

'Q I see. Well, Mrs. Oaks, what would the property have sold for that was only fifty feet deep? That's on the south side of the highway in the before situation.

'A What would it have sold for?

'Q Yes. What would property fifty feet deep on the highway have sold for? Is there any market for property that is fifty feet deep?

'MR. KINNEY: I am going to object. It's not proper recross-examination.

'MR. GOODFARB: She just said her method is correct.

'THE COURT: She may answer.

'A My figures are an average overall.

'Q Mrs. Oaks, isn't it true that the State on the south side of the highway is only taking to a depth of fifty feet?

'A That is true.

'Q What would a property to a depth of fifty feet sell for?

'A I haven't estimated that.

'Q You estimated a hundred and fifty feet. You estimated four hundred feet.

'A The first fifty foot would sell for more than this. The average for a fifty foot depth parcel, the average for the first fifty foot, would be more per square foot or per acre than if you averaged in the cheaper land at the rear.

'Q Mrs. Oaks, is there any market--

'A (In...