Grande v.Casson, Civil 3891

• Decision Date: 25 October 1937
• Docket Number: Civil 3891
• Citation: 50 Ariz. 397,72 P.2d 676
• Parties: JOHN GRANDE, Appellant, v. J. A. CASSON, THE ARIZONA STATE HIGHWAY COMMISSION, and THE STATE OF ARIZONA, Appellees
• Court: Arizona Supreme Court

72 P.2d 676

50 Ariz. 397

JOHN GRANDE, Appellant, v. J. A. CASSON, THE ARIZONA STATE HIGHWAY COMMISSION, and THE STATE OF ARIZONA, Appellees

Civil No. 3891

Supreme Court of Arizona

October 25, 1937

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment reversed and cause remanded with instructions.

Mr Elmer Graham and Mr. Renz L. Jennings, for Appellant.

Mr. Joe Conway, Attorney General, and Mr. A. R. Lynch, his Assistant for Appellees.

OPINION

LOCKWOOD, J.

This is an appeal by John Grande, hereinafter called plaintiff from a judgment in favor of J. A. Casson, Arizona State Highway Commission, and the state of Arizona. The facts of the case, in so far as they appear in the abstract of record, may be stated chronologically as follows:

On the 18th of February, 1937, plaintiff filed a petition for a writ of garnishment, accompanied by a bond. The title of the petition was "John Grande, Plaintiff, v. J. A. Casson and the Arizona State Highway Commission, Defendants," and in the body thereof we may, perhaps, gather that an action for damages had been previously filed by plaintiff against the two defendants named. Nothing, however, in the abstract shows the nature or allegations of the complaint on which the affidavit of attachment was apparently based. The next thing we find is a motion to quash a writ of garnishment, filed February 27th. The writ to which it refers does not appear in the record, but from the motion it may, perhaps, be thought that one was issued on the 19th of February against the treasurer of the state of Arizona, in the same action as that in which presumably the affidavit for attachment above referred to was filed. On the 4th of March, a demurrer and answer was filed, probably directed against the missing complaint above referred to. We next find that a document, entitled "First Amended Complaint," was filed on March 9th. For some reason, in addition to Casson and the Highway Commission, the state of Arizona itself appears as a defendant. On the 11th of March the state filed a special appearance for the purpose of objecting to the jurisdiction fo the court. On the 16th of March there was a second amended application for a writ of garnishment. We presume a garnishment must have been issued on this application, for on the 18th of March the defendants moved that the writ issued on the 16th of March be quashed. It might, perhaps, be imagined that the garnishees had filed an answer to the writ on March 16th, although it does not appear in the abstract, for the reason that on March 22d plaintiff filed an affidavit contesting garnishees' answer, and tendering a pleading in support of such affidavit. This covers practically all of the pleadings found in the record. The minute entries show that on the 22d of March, the defendant's special appearance and objection to the jurisdiction, the motion to quash the writ of garnishment, and the demurrer were argued, and on the 23d of March were taken under advisement. On the 26th of April they show the court sustained the demurrer to the complaint and granted the motion to quash the writ of garnishment, and plaintiff having elected to stand on his pleadings, on May 15th judgment was rendered that the plaintiff take nothing by his action, and that the defendants be allowed their costs.

There are three assignments of error. The first that the court erred in sustaining the demurrer to the complaint; the second, that it erred in quashing the writ of garnishment; and the third, that it erred in sustaining the plea of defendant, the state of Arizona, to the jurisdiction of the court.

It is somewhat difficult, after reading the pleadings and the briefs, to determine which assignment of error to consider first, in order that this opinion may be reasonably logical and clear; but, perhaps, it will be best to determine the sufficiency of the complaint first. There were two causes of action set up therein. In the first count the plaintiff alleges that the Arizona State Highway Commission is a body politic composed of five members, naming them, and the state of Arizona is a body politic incorporated, and that he complains of the commission, the state, and of one J. A. Casson, as follows. He then alleges that his suit is in damages, and for the ground thereof states that he has been the owner for about 20 years of certain lots in Railroad addition to the city of Douglas, abutting in part on the Sixteenth Street extension through such addition, with the appurtenant use of ingress and egress thereto to said Sixteenth Street extension; that on May 1, 1936, he was operating a mercantile, gasoline station and tourist camp on said lots, with a large investment, and making a good profit thereon. He then alleges that the Sixteenth Street extension had, in some unnamed manner, become United States federal highway 80, the transition, however, being alleged to have occurred after plaintiff had acquired title to his lots, and that about May 1, 1936, the defendants entered upon said highway 80 and forcibly trespassed upon plaintiff's right of access thereto by, under pretext of opening, widening, altering, and changing said highway and improving the grade thereof, shutting off egress and ingress to plaintiff's lots over said highway 80 for some six months while the changing and improving of the grade was going on, to plaintiff's damage in the sum of $2,700.

For a second cause of action, which he alleges was against Casson, the state of Arizona, and the Arizona State Highway Commission, as a body politic, without naming the individual members thereof, he set up the same matters in regard to his ownership of the lots with the right of ingress and egress, and that the defendant Casson, acting in some relation to the other named defendants which was unknown to plaintiff, but with their active participation, erected a concrete curb from 18 inches to 3 feet in height along the edge of the highway next to plaintiff's property line, which blocked permanently ingress and egress to his premises from said highway 80, and altered and widened the grade of the street, and the sewer facilities which were then existent, to such an extent that the flood waters drained up and against the concrete curb on plaintiff's property, and stood thereon, and, because of the negligent manner of constructing the sewerage and drainage facilities by the defendants, the sewerage appurtenant to or adjacent to plaintiff's premises backed up and stood stagnant, emitting foul odors and stenches, and created a dangerous sanitary condition on and about plaintiff's premises to his damage in the sum of $5,300.

It will be seen on a consideration of these two counts that the first one, in substance, is for damages alleged to have been caused by the temporary blocking of plaintiff's right of ingress and egress during the alteration and changing of grade of federal highway 80; while the second is for an alleged permanent injury caused by two things: (a) The construction of a curb along the edge of the highway by plaintiff's property, which caused flood waters to back up on the property; and (b) the negligent construction of a sewer drain built by the defendants, which caused sewerage to stand and stagnate thereon.

The first question for us to consider is what, if any, right of action had plaintiff against the defendants or any of them, under the allegations of his complaint. Plaintiff apparently relies chiefly on the rule laid down by us in the case of In re Forsstrom, 44 Ariz. 472, 38 P.2d 878, 885. He contends that case holds that the obstruction of a right of ingress and egress to a public street, by the changing of the grade of the street and the work appurtenant thereto, made long after the street has been originally established, is a taking or damaging of property, within the meaning of section 17, article 2, of the Constitution of Arizona, and that he is entitled to recover damages therefor. We think plaintiff has failed to consider fully the rule laid down in the Forsstrom case. We did hold very definitely and specifically as follows:

"We are satisfied that the word 'taking,' when used in constitutions or statutes in regard to property, and particularly realty, includes the permanent taking or diminishing of any of the rights which one has by reason of and appurtenant to his ownership of the realty in question, as well as a deprivation of the title to the physical object."

And that the destruction or injury of a right of ingress and egress was included within the rights just referred to. But we also held that, in the absence of a statute to the contrary, after a street had once been established, the public authorities had a right to change the grade without paying additional compensation to a property owner for an invasion of his right of access through the subsequent regarding, and used the following language:

"We have examined the text of Cooley on Constitutional Limitations and the cases therein cited on this question. Mr Cooley says:

"'... A strong inclination is apparent to hold that, when the fee in the public way is taken from the former owner, it is taken for any public use whatever to which the public authorities, with the legislative assent, may see fit afterwards to devote it, in furtherance of the general purpose of the original appropriation; and if this is so, the owner must be held to be compensated at the time of the original taking for any such possible use; and he takes his chances of that use, or any change in it, proving beneficial or deleterious to any remaining property he may own or business he may be engaged in....' (Italics cours.)

"In Callender v. Marsh, 1 Pick. (Mass.) 418, it is said: '... The streets on which the plaintiff's...