Phoenix Title & Trust Co. v. State ex rel. Herman

• Decision Date: 20 March 1967
• Docket Number: CA-CIV,No. 1,1
• Citation: Phoenix Title & Trust Co. v. State ex rel. Herman, 425 P.2d 434, 5 Ariz.App. 246 (Ariz. App. 1967)
• Parties: PHOENIX TITLE AND TRUST COMPANY, an Arizona corporation, Appellant, v. STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellee. 241.
• Court: Arizona Court of Appeals

Page 434

425 P.2d 434

5 Ariz.App. 246

PHOENIX TITLE AND TRUST COMPANY, an Arizona corporation, Appellant, v. STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellee.

No. 1 CA-CIV 241.

Court of Appeals of Arizona.

March 20, 1967.

Rehearing Denied April 21, 1967.

Review Denied May 9, 1967.

Jennings, Strouss, Salmon & Trask, by O. M. Trask, Phoenix, for appellant.

Darrell F. Smith, Atty. Gen., by William H. Rehnquist, Special Asst. Atty. Gen., for appellee.

STEVENS, Judge.

This appeal concerns itself with the denial of an award for severance damages in connection with a condemnation of property for the construction of a controlled access interstate highway. This highway bears the designation of Interstate Highway 17.

The appellee was the plaintiff in the Superior Court and will be referred to as the State. The appellant was the defendant in the Superior Court. It held title to the subject property in trust for a number of individuals. The appellant will be referred to as the owners. All measurements and distances as well as acreage will be stated in the opinion in approximate figures. There have been reproduced, and set forth as a part of this opinion, an illustrative schematic drawing which is found in the brief of the owners and one photograph which was received in evidence. The drawing of the land in question illustrates the land's relationship to the interstate highway. The land extends easterly to 19th Avenue which is not shown on the drawing. The photograph illustrates the intersection shown in the drawing.

The date of taking was 6 February 1963. The physical situation applicable to the road and to the property before 6 February 1963 will be referred to as 'the before situation' and the physical features after the taking and after the completion of the construction will be referred to as 'the after situation'. The construction of the interstate highway as well as the frontage roads and the underpass connecting the frontage roads, was completed prior to the trial as more particularly appears from the exhibit which is incorporated in this opinion.

The interstate highway, generally known as Black Canyon Highway, runs generally in a north-south direction. For some time prior to the taking, Black Canyon has been one of the principal highways from the City of Phoenix to Northern Arizona. Prior to the taking, that portion of the interstate highway which lies south of the subject property closer to the City of Phoenix, was in the process of construction as a limited access freeway. Prior to the taking, Black Canyon in the neighborhood of the subject property, was a good, black topped roadway with a white driving line in its center. By reason of there being but one dividing line, and the absence of lane lines, it was referred to as a two-lane highway with one lane of traffic in each direction. Black Canyon was capable of carrying four cars abreast, two in each direction. Black Canyon was on grade with the subject property as it passed the property.

In the before situation there were a number of east-west roads which intersected Black Canyon at substantially right angles, these roads being on grade and one mile apart. One such road was Beardsley Road. According to the map attached to the complaint, Beardsley Road lies along the section line between Section 24 on the north and Section 25 on the south. The map discloses a 66 foot right-of-way, for road purposes, 33 feet on each side of the section line. Although 66 feet were available for road purposes, Beardsley, in the before situation, was unimproved and the vehicular traffic was at a minimum.

The subject land of the owners contained approximately 483 acres. This land is bound on the west by Black Canyon and on the east by 19th Avenue. The distance from Black Canyon to 19th Avenue is approximately three-fourths of a mile. The land lies to the north and to the south of Beardsley, both parcels being of substantially equal size and both parcels being adjacent to and having full access to Beardsley. 19th Avenue is a well traveled street which has a northerly terminus not far north of the subject property and it continues southerly to the City of Phoenix. In the before situation, in addition to having full access to Beardsley, the subject property had full access to both Black Canyon and 19th Avenue. While it is true that there was a small triangular parcel, too small to be of commercial value, which was located at the southwest corner of the northerly half of the subject property, the witnesses did not discount the value of the subject property by reason of the triangle. The triangle was taken by the State in other proceedings.

At the time of the taking, the subject land was vacant. At an earlier date, it had been used for agricultural purposes.

In the after situation, Black Canyon remained at its previous grade and the limited access highway was constructed upon the right-of-way in the before situation. An interchange was constructed at the junction of Black Canyon and Beardsley as well as at other one mile roads. The westerly 650 feet of Beardsley, as its point of contact with the subject property, was widened and paved, the paved portion being on a decline to the west. Beardsley then proceeded in its westerly course, not at grade with Black Canyon and the subject property, but approximately 18 to 20 feet below grade. After passing through the underpass at its Black Canyon intersection, Beardsley rose in elevation, by a similar incline, to grade with the land lying west of Black Canyon.

In place of the free access of Black Canyon in the before situation, a non-way northbound frontage and was constructed on the east side of Black Canyon adjacent to the subject property. A similar one-way southbound frontage road was constructed on the west side of Black Canyon. At a point approximately 1100 feet south of the Beardsley-Black Canyon intersection, the frontage road adjacent to the subject property starts a decline to the interchange and from that point, proceeds north on an incline to grade reaching grade at approximately 1100 feet north of Beardsley.

In the before situation, the south portion of the subject property enjoyed approximately 2500 feet of free access to Black Canyon and the north portion enjoyed a substantially similar access. In the after situation, the south portion had a free access exposure to the one-way frontage road being approximately the south 1400 feet of the south 2500 feet of the subject property, and had like free access to the frontage road in relation to the northerly half of the subject property, that is to say, for approximately 1400 feet of the north 2500 feet of the subject property. At the interchange of Black Canyon and Beardsley, in the after situation, as is illustrated by the schematic drawing and the photograph made a part of this opinion, there was not only a complete loss of approximately 2200 feet of access to the west, there is in addition a loss of approximately 650 feet on each side of the westerly portion of Beardsley. In addition to the loss of access, the corners of the property formerly abutting Beardsley and Black Canyon, are 18 to 20 feet above the junction of the frontage road and Beardsley. All of the land and area to which access had been eliminated in fenced and the land adjoining the declines and inclines to Black Canyon and Beardsley is held in place by a cement protective cover.

One of the owners and two qualified appraisers testified on behalf of the owners. Two qualified appraisers and an economist testified on behalf of the State. In reaching their opinions as to value, the appraisers used the fair market value approach and relied strongly on their respective analyses of comparable sales. Three of the appraisers allocated a single value for each of the acres in the subject property. Mr. Blake, who testified for the owners, attributed greater values to the land fronting on Black Canyon and on 19th Avenue and lesser values to the interior acreage. This approach is similar to the one used in the case of State ex rel. Morrison v. Jay Six Cattle Company, Inc., 88 Ariz. 97, 353 P.2d 185 (1960).

The jury returned a verdict awarding compensation for the land taken and neither party questions this verdict in connection with the appeal. The verdict did not reflect either the high or the low testimony as to value. An arithmetic computation shows a value fixed by the jury very close to the testimony of one of the expert witnesses.

The major contest arose in relation to the contentions of the owners that they sustained severance damages. The issues on appeal revolve around rulings on evidence and upon instructions. The trial court made it possible for the jury to return a verdict of 'no damages' in relation to the issue of severance damages and the jury returned that form of verdict

Both parties rely heavily upon the case of State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 350 P.2d 988 (1960). In thelberg, the old right-of-way was utilized for the site of the improved limited access freeway. This situation differs from the one presented to the Arizona Supreme Court in the case of Pima County v. Bilby, 87 Ariz. 366, 351 P.2d 647 (1960). Both Thelberg and Bilby are discussed in the Court of Appeals decision of State ex rel. Herman v. Wilson, 4 Ariz.App. 420, 420 P.2d 992 (1966). In relation to Wilson, the Court of Appeals rendered an opinion denying the motion for rehearing. This opinion was filed on 19 January 1967, and a petition for the review of the case by the Arizona Supreme Court, as of the time of the preparation of this opinion, is under consideration, by the Arizona Supreme Court.

Article II of Sectioen 17 of the Arizona Constitution, 1 A.R.S., provides in part as follows:

'No private property shall be taken or damaged for public or private use without just compensation having first been made, or paid into court for the owner * * *.'

In part, A.R.S....