Dixon v. City of Phoenix
| Decision Date | 16 June 1992 |
| Docket Number | No. 1,CA-CV,1 |
| Citation | 845 P.2d 1107,173 Ariz. 612 |
| Parties | , Util. L. Rep. P 26,226 Jimmie D. DIXON and Carolyn B. Dixon, husband and wife, Plaintiffs-Appellants, v. CITY OF PHOENIX, a municipal corporation; and Aztec Construction Company, a corporation, Defendants-Appellees. 90-245. |
| Court | Arizona Court of Appeals |
This is an appeal from a judgment entered by the superior court in two consolidated cases involving the condemnation by the City of Phoenix (the "City") of a permanent easement for the construction and maintenance of a water pipeline across a portion of property belonging to Jimmie and Carolyn Dixon ("the Dixons"). The issue on appeal is whether the trial court properly excluded from the final judgment damages for the destruction of vegetation on the Dixons' property both within and outside the easement area that occurred during the construction of the pipeline.
On December 10, 1986, the Phoenix City Council passed an ordinance authorizing the City Manager, the City Attorney, the Real Estate Administrator, and the Finance Director to acquire permanent easements across certain property, including the Dixons' property, to be used as a right-of-way for a waterline. The legal description for the easements attached to the ordinance contained the following language:
No structure of any kind shall be constructed or placed within this easement except water lines and appurtenances, wooden, wire or removable section-type fencings and/or paving, nor shall any vegetation be planted therein except grass. The City of Phoenix shall not be required to repair or replace any obstruction, paving or vegetation that becomes damaged or must be removed during the course of required construction, reconstruction or maintenance.
An eminent domain action was filed by the City against the Dixons on February 4, 1987. A hearing on the City's application for possession was scheduled for March 6, 1987. Before the hearing took place, the City and the Dixons entered into a right of entry agreement. The agreement allowed the City to enter the Dixons' property without a court order, and the hearing on the application for possession was vacated.
The Dixons stipulated in the agreement that the waterline was a necessary and public use. The agreement also stated that it was not intended as a waiver of the Dixons' right to just compensation, that the City would negotiate with the Dixons with respect to the just compensation damages, and that if no satisfactory agreement could be reached, the City would institute eminent domain proceedings to determine just compensation.
The right of entry agreement also contained the city's promise not to damage existing vegetation. An addendum to the agreement provided in part as follows:
The City and its contractors will not enter or cross any of owner's property in order to perform the work other than the easement area. The City will perform the projects so as not to damage or destroy any of the existing terrain or vegetation on owner's property. The City will perform its work in a manner so as not to damage or destroy any of the existing trees in the easement area.
* * * * * *
City will repair at its expense any damage caused to owner's property or the property of others.
The City hired Aztec Construction Company ("Aztec") to construct the waterline. The construction project was commenced in June, 1987, and was accepted by the City with final payment in May, 1988. In constructing the waterline on the Dixons' property, Aztec "bulldozed, ripped out and otherwise destroyed virtually every growing thing including large mesquite and palo verde trees, not only in the easement area but, in places outside the easement areas as well," according to a memo later written by the City's Assistant Chief Counsel to the Deputy City Engineer. Neither Aztec nor the City replaced the vegetation.
The Dixons filed a complaint against the City and Aztec. The complaint alleged that the City had breached the right of entry agreement and that Aztec's and the City's trespass and negligence caused the damage to the vegetation. The Dixons sought the cost to replace the vegetation as the measure of their loss. The superior court granted the Dixons' motion to consolidate their action with the City's pending eminent domain action.
After the commencement of the Dixons' lawsuit against the City, the Phoenix City Council amended the original ordinance authorizing condemnation of the easement. The amendment now authorized the taking of the entire fee title to the portion of the Dixons' property on which the waterline was constructed. The amendment was apparently an attempt to extinguish any liability the City might have had to the Dixons for destruction of the vegetation. The City subsequently filed an amended complaint seeking condemnation of fee title of the relevant portion of the Dixons' property. After conducting discovery, the Dixons, the City and Aztec all filed motions for summary judgment. These motions addressed: (1) the necessity for the City to take fee title to the property on which the waterline was constructed; (2) the enforceability of the promise to repair damage contained in the right of entry agreement; and (3) the method to be used in determining compensation for the damage to the Dixons' vegetation.
The superior court granted summary judgment in favor of Aztec. In addition, the court ruled that it was not necessary that the City take fee title to the Dixons' property, thereby rejecting the city's attempt to condemn the fee interest and relegating the City to an easement interest. The court also determined that the right of entry agreement was not enforceable because it did not create a right to compensation apart from the just compensation rule. It further held that just compensation would be measured by the difference between market value of the parcel before the taking and the market value after the taking.
The parties then stipulated to an agreed statement of facts. They agreed that the value of the easement interest the City sought to condemn was $14,000.00 and that the destruction of the vegetation did not reduce the fair market value of the land on which it was growing.
Based on the stipulated facts and its prior rulings, the court entered judgment granting the City condemnation of a permanent easement, awarding the Dixons the sum of $14,000.00 as just compensation, and denying the Dixons' claim for additional damages. Apparently, no severance damages for diminished value of the remainder of the Dixons' property were awarded. The judgment included an exhibit with the legal description of the easement identical to that originally authorized by the Phoenix City Council, including the prohibition against vegetation other than grass on the easement. The Dixons appealed from this judgment.
The Dixons claim that the trial court erred in failing to award the cost of restoration damages against the City for the destruction of vegetation that occurred on their property. They argue that such destruction breached the terms of the right of entry agreement and that the remedy was specified in the agreement. See generally Deuel v. McCollum, 1 Ariz.App. 188, 400 P.2d 859 (1965) ().
The City answers that the right of entry agreement did not abridge the City's statutory right to obtain the easement through condemnation. The City's obligation to compensate the Dixons for condemnation is limited to just compensation. In determining just compensation in a partial taking, such as that involved in the case at bar, Ariz.Rev.Stat. ("A.R.S.") § 12-1122(A) provides that a court or jury shall assess (1) the market value of the property actually taken by the condemnation, and (2) the diminution in the remaining property's market value caused by the taking. 1 Because the Dixons stipulated that the destruction of the vegetation did not reduce the fair market value of their property, the City contends that the Dixons are entitled to no more than the $14,000.00 awarded, which the parties agreed was the value of the easement interest taken.
The right of entry agreement required the City to construct the waterline without destroying the Dixons' vegetation and to repair at its expense any damage caused by the construction. 2 Therefore, the agreement conflicts with the actual easement granted by the court, which included the surface use restrictions and disclaimer quoted above.
While we agree that a governmental entity cannot contract away its eminent domain power, Tucson Electric Power Co. v. Adams, 134 Ariz. 396, 656 P.2d 1257 (App.1982), the right of entry agreement did not bar the City from taking the easement. The agreement merely provided that the City was to assume certain obligations in exchange for obtaining the right of entry.
A governmental entity may not disregard its contractual liabilities simply because they were incurred in connection with a taking of property. See State ex rel. Herman v. Schaffer, 105 Ariz. 478, 467 P.2d 66 (1970); State ex rel. Herman v. Tucson Title Ins. Co., 101 Ariz. 415, 420 P.2d 286 (1966). In Schaffer, some property owners conveyed portions of their property to the state for use as a right-of-way for a highway. The consideration for this taking included an agreement by the state that it would install and maintain seven crossovers for the benefit of the abutting properties. The state later turned the highway into a limited-access highway and eliminated the...
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