Ortega v. State ex rel. Herman

• Decision Date: 02 November 1967
• Docket Number: CA-CIV
• Citation: Ortega v. State ex rel. Herman, 432 P.2d 904, 6 Ariz.App. 356 (Ariz. App. 1967)
• Parties: Max ORTEGA and Amelia Ortega, his wife, Appellants, v. STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellee. 1245.
• Court: Arizona Court of Appeals

Page 904

432 P.2d 904

6 Ariz.App. 356

Max ORTEGA and Amelia Ortega, his wife, Appellants, v.STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellee.

1 CA-CIV 245.

Court of Appeals of Arizona.

Nov. 2, 1967.

Review Denied Dec. 19, 1967.

Alexander Russin, Show Low, and Evans, Kunz & Bluemle, by Donald R. Kunz, Phoenix, for appellants.

Darrell F. Smith, Atty. Gen., by H. K. Mangum, Sp. Asst. Atty. Gen., for appellee.

STEVENS, Judge.

The basic issues presented to the Court relate to the matter of severance damages in connection with the construction of a limited access interstate highway which was not constructed on the old right-of-way and which new highway bisects the land of the owners.The condemnor is the State of Arizona.The condemnees are Mr. and Mrs. Ortega who are the appellants in this Court.Mr. and Mrs. Ortega will be referred to as the 'owners'.

Lupton, Arizona, lies just westerly from the State line of the State of New Mexico.At the location of the property in question, U.S. Highway 66, which is the old highway, runs generally northeasterly and southwesterly.The new highway, which is Interstate 40, roughly parallels U.S. 66 and is northerly therefrom.The land of the owners is patented land and patented land in this area is the exception rather than the rule.

The complaint in condemnation seeks title to the land over which the new right-of-way will pass,

'* * * together with all access rights appurtenant and incident to the remaining real property abutting on the State right of way as are required to effectuate said resolution, reserving, however, to the defendant owners, their heirs, successors and assigns access to the two-way frontage road parallel and adjacent to the course described * * * which frontage road will be connected to the main thoroughfare of the Interstate Highway at the Lupton Interchange; and further reserving to the defendant owners, their heirs, successors and assigns access to a double 10-foot by 10-foot concrete drainage structure under the highway * * * for the privilege of moving livestock, equipment, machinery, vehicles and pedestrians, beneath said highway.'

An illustrative diagram was incorporated in the opening brief of the appellants and it is reproduced as a part of this opinion.The diagram shows the after situation.In the before situation the north remainder and the south remainder were one contiguous parcel of land.In the after situation the two remaining parcels were effectively separated from each other.To the east of the north remainder across private land without easements or right of use, there is a bladed strip having the appearance of a roadway.The area in the map wherein numerous dots have been placed is a wash with generally steep banks.The culvert under Interstate 40 consists of two concrete drainage structures each of which is 10 ft. wide and 10 ft. high.Under limited circumstances these drainage structures may be utilized as a means of travel between the south remainder and the north remainder.There is an interchange approximately 1450 feet east of the owner's property affording access to and from Interstate 40 whereby one can reach U.S. 66 and can also reach the bladed so-called roadway which runs to the north remainder.

The map discloses the approximate location of buildings in the south remainder and these buildings together with other structures, which were located on the land now occupied by Interstate 40, were utilized by the owners in connection with their trading post business.In the before situation, the owners utilized the combined unit area of the south remainder, the north remainder and the land now occupied by Interstate 40, in connection with the operation of their besiness.A material portion of their business was Indian trade and the Indians frequently used the land area in the north remainder and southerly therefrom for yabachais, sings and squaw dances.The testimony discloses that patented land is desired by the Indians for these purposes.The availability of this area and the use thereof by the Indians resulted in a considerable volume of business.There was testimony that much of this Indian use was lost as a result of the construction of Interstate 40 and the division of the owner's land into the areas described as the north remainder and the south remainder.

In relation to the right of condemnation, Section 17 of Article 2 of the Arizona Constitution, A.R.S. states, in part:

'* * * No private property shall be taken or damaged for public or private use without just compensation * * *.'

This constitutional provision is supplemented by the statutory law of the State and A.R.S. Section 12--1122 specifies, in part:

'A.The court or jury shall ascertain and assess:

'1.The value of the property sought to be condemned * * *

'2.If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned, and the construction of the improvement in the manner proposed by the plaintiff. * * *'

It is well established in Arizona that when the new highway is not constructed over the right-of-way of an existing highway and is located upon a new and different land area, there are no access rights which are thereby destroyed or impaired so that no compensation is payable for the loss of the non-existent access rights to the new roadway.State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 350 P.2d 988(1960);andBusby v. State ex rel. Herman, 101 Ariz. 388, 420 P.2d 173(1966).It is our opinion that the above quoted portion on the complaint which alleges 'together with all access rights, appurtenant and incident to the remaining real property abutting on the State right of way * * *' was inserted to make it doubly clear that in the after situation the abutting property would not have access rights to Interstate 40.

There is frequently a difference of opinion between the experts who testify, and a further difference of opinion in the testimony of the owners, as to the value of the land taken and as to the severance damages.This case was no exception.The appraisers combined three methods of evaluation to reach their respective opinions using the income approach, the replacement and depreciation approach, and the comparison of comparable sales.The income approach was a material element in the opinion expressed by the owners.The expert who testified for the State allocated greater values to the land adjacent to U.S. 66 than he did to the lands further removed therefrom, that is, the land contained in the north remainder.The appraiser who testified for the owners expressed the opinion that the highest and best use required the unit value approach, that is, that the lands farther removed from U.S. 66 had the same acreage value as the lands which bordered on U.S. 66 because of the manner of the use of the entire area.

An overall reading of the instructions fairly required the jury to find not only the fair market value of the land which was taken but to also return a verdict in some amount for severance damage.It is the severance damage aspect of the case which is the thrust of the appeal.

Rule 51 of the Rules of Civil Procedure, 16 A.R.S., relates to instructions in civil cases.Rule 51(a) specifies, in part:

'* * * No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.Opportunity shall be given to make the objection out of hearing of the jury.'

The owners tendered their Requested InstructionNo. 12 which reads as follows:

'In this action the State of Arizona seeks to condemn for highway right-of-way purposes not only a portion of Defendants' land, but also Defendants' access and abutters' right as set forth in Plaintiff's Complaint, appurtenant and incident to the lands of said Defendants abutting upon said right-of-way, for the full distance of Defendants' land frontage upon said right-of-way as it crosses defendants' land.The Court has held as a matter of law that it is entitled to do so.

'You are, therefore, instructed that you shall include in your verdict severance...