Haney v. City of Tucson

• Decision Date: 02 November 1970
• Docket Number: CA-CIV,No. 2,2
• Parties: Charles D. HANEY, Jr., and Mary Allen Haney, husband and wife, Appellants, v. CITY OF TUCSON, a municipal corporation, Appellee. 793.
• Court: Arizona Court of Appeals

Page 955

475 P.2d 955

13 Ariz.App. 296

Charles D. HANEY, Jr., and Mary Allen Haney, husband and wife, Appellants, v. CITY OF TUCSON, a municipal corporation, Appellee.

No. 2 CA-CIV 793.

Court of Appeals of Arizona, Division 2.

Nov. 2, 1970.

Rehearing Denied Dec. 2, 1970.

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

Lewis C. Murphy, City Atty., by J. Dan O'Neill, Asst. City Atty., Tucson, for appellee.

HOWARD, Chief Judge.

The controversy in this case revolves around the City's method of computing severance damages.

Appellants were the owners of a property located on the north side of East 22nd Street in Tucson, Pima County, Arizona. The land had in the before situation, sixty feet of frontage on 22nd Street with a depth of 128.21 feet. It was improved with a house that had been remodeled into professional and business offices.

As a result of this condemnation, East 22nd Street was widened which resulted in a strip of land of approximately 15 to 16 feet in width being taken from the front of the property. The appraiser for the City, as well as the one for the landowner, testified that the taking reduced the number of vehicles which could park in front of the improvements.

There was testimony that as a result of the taking, appellants' property was going to have assessments levied against it in the amount of $1,074.75.

The appraiser for the property owners valued the property in the before situation at $27,900.00. His after valuation was $18,150.00. Of the total damages suffered by the property owners, he testified that the part taken represented the sum of $2,260.00. The balance of the damages in the sum of $7,485.00, in his opinion, resulted from the depreciation of the remaining property brought about by the taking of the front parking plus the levying of the assessments in the amount of $1,074.75.

The appellants contend: (1) That the City did not apply the correct formula for computing severance damages; (2) that the City's appraiser did not take into consideration the impact of the assessments on the value of the remainder; (3) that in the State of Arizona it is impossible for the value of the remainder in the after situation to be the same as the value of the remainder in the before situation.

Arizona is committed to the rule that when only a part of the property is taken, the measure of severance damages is the difference between the market value of the property not taken before and after the taking. City of Tucson v. La Forge, 8 Ariz.App. 413, 446 P.2d 692 (1968); Deer Valley Industrial Park Development & Lease Co. v. State, 5 Ariz.App. 150, 424 P.2d 192 (1967); Suffield v. State, 92 Ariz. 152, 375 P.2d 263 (1962); State ex rel. Morrison v. Thelberg, 86 Ariz. 263, 344 P.2d 1015 (1959); County of Maricopa v. Shell Oil Company, 84 Ariz. 325, 327 P.2d 1005 (1958).

Appellants' contention that the City did not follow this rule is not substantiated by the evidence. The City's appraiser used the income approach to value and testified as follows on direct examination:

'Q. On a blank sheet of paper, marked Plaintiff's Exhibit 29, I'm writing the word Ross, and in summary, Mr. Ross, your...