Olson v. State

• Decision Date: 17 April 1970
• Docket Number: No. 2,CA-CIV,2
• Citation: 12 Ariz.App. 105,467 P.2d 945
• Parties: Eugene OLSON and Thelma Olson, husband and wife, Appellants, v. STATE of Arizona and City of Tucson, a municipal corporation, Appellees. 763.
• Court: Arizona Court of Appeals

Page 945

467 P.2d 945

12 Ariz.App. 105

Eugene OLSON and Thelma Olson, husband and wife, Appellants, v. STATE of Arizona and City of Tucson, a municipal corporation, Appellees.

No. 2 CA-CIV 763.

Court of Appeals of Arizona, Division 2.

April 17, 1970.

Rehearing Denied June 3, 1970.

Review Denied June 30, 1970.

Dunseath & Stubbs, by Robert C. Stubbs, Tuscon, for appellants.

Lewis C. Murphy, City Atty., City of Tucson, Miller, Pitt & Feldman, by Stanley G. Feldman, Tucson, Special Attys., for appellee City.

Gary K. Nelson, Atty. Gen., by Stanley Z. Goodfarb, Asst. Atty. Gen., Phoenix, for appellee State.

HOWARD, Chief Judge.

This appeal is taken from a judgment in favor of the State of Arizona and the City of Tucson in inverse eminent domain proceedings instituted by the appellants, owners of certain property located in the City of Tucson. ¹

The Olsons claimed their property had been damaged because there had been a 'change in plans' in a highway construction project. This 'change of plans' theory was predicated on the following facts. In 1961 the Olsons' property fronted on West Grant Road and the State of Arizona commenced a condemnation action for the purpose of taking certain property rights. This taking included an underground easement and impairment of access rights resulting from a contemplated change of grade. At the condemnation trial, the construction plans were admitted in evidence, showing the grade change and resulting access control and the construction to be made. They also indicated that a median divider would be constructed on West Grant Road, extending in front of only the west sixty feet of the Olsons' frontage on Grant Road. The Olsons were awarded $12,000.00 for this 'taking.'

Subsequently in 1967, the City of Tucson (the State of Arizona acted as agent for the City because the highway was a federal-aid highway project) commenced and completed a project for improving and widening Grant Road. As a result of this project, the median divider previously adverted to was extended an additional 300 feet to the east. The Olson property had the same access to Grant Road after the completion of this project as after the completion of the first project. The effect of the extension of the median divider, however, was to transform Grant Road into a one-way street. In other words, west-bound traffic on Grant Road could not turn left into or out of the Olson Property, and traffic leaving the Olson Property could not turn left and proceed west on Grant Road.

The Olsons' claim for damages was predicated on the fact that the $12,000.00 jury verdict in the condemnation proceedings was based upon the construction of Grant Road pursuant to the plans which were admitted in evidence and that the subsequent failure to actually complete Grant Road in accordance with these plans caused damage to their property. It is their position that once the condemning authority had represented to the jury in the condemnation proceeding that it proposed to construct Grant Road in accordance with certain plans and specifications, and the jury acted thereon, the condemning authority was bound by its representation and any change in plans constituted a further taking for which they were entitled to just compensation.

In support of their position, they cite State ex rel. Herman v. Schaffer, 105 Ariz. 478, 467 P.2d 66. (Filed March 26, 1970); State ex rel. Herman v. Tucson Title Insurance Company, 101 Ariz. 415, 420 P.2d 286 (1966); State ex rel. Herman v. Wilson, 103 Ariz. 194, 438 P.2d 760 (1968); State v. McDonald, 88 Ariz. 1, 352 P.2d 343 (1960; Feuerborn v. State of Washington, 59 Wash.2d 142, 367 P.2d 143 (1961); People ex rel. Department of Public Works v. Schultz Co., 123 Cal.App.2d 925, 268 P.2d 117 (1954); Hassler v. Overton County, 203 Tenn. 288, 311 S.W.2d 206 (1958); Fleming v. Noble, 111 Ohio App. 289, 171 N.E.2d 739 (1959). We have no quarrel with the principles enunciated in these cited cases. They are, however, inapposite since the road was in fact completed in the exact manner set forth in the plans. Such was the finding made by the trial court and the appellants have not in any manner, shown the finding to be in error.

However, assuming arguendo that there had been a change in the original plans, the 'change of plans' doctrine is inapplicable to the case at bench. It is well settled in this jurisdiction that the construction of a median divider is a valid exercise of the police power and is merely damnum absque injuria. Rayburn v. State, ex rel. Willey, 93 Ariz. 54, 378 P.2d 496 (1963); Rutledge v. State, 100 Ariz. 174, 412 P.2d 467 (1966); City of Phoenix v. Wade, 5 Ariz.App. 505, 428 P.2d 450 (1967). As this court stated in Wade, supra:

'In the proper exercise of its police power * * * a city, state or county may do to an abutting property owner many things which are noncompensable, such as contructing a traffic island, Placing permanent dividing strips which deprive an abutting owner of 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.' 5 Ariz.App. at 508, 428 P.2d at 453 (Emphasis added.)

A change of plans may give rise to a cause of action (1) where the circumstances are such that the change results in construction of some feature that would have caused some compensable damage not included in the original award, or (2) where the change results in elimination of some feature which, although itself non-compensable, was considered in mitigation of some compensable element of damage. Here, even if the original plans had indicated the construction of a median divider as it was ultimately constructed, the jury could not have been permitted to consider it as a compensable item. City of Phoenix v. Wade, supra.

The Olsons,...