Pima County v. Bilby

• Decision Date: 27 April 1960
• Docket Number: No. 6508,6508
• Parties: PIMA COUNTY, a body politic and corporate, Appellant, v. Ralph W. BILBY and Ralph W. Bilby, as Executor of the Estate of Marguerite Mansfield Bilby, deceased, Appellee.
• Court: Arizona Supreme Court

Page 647

351 P.2d 647

87 Ariz. 366

PIMA COUNTY, a body politic and corporate, Appellant, v. Ralph W. BILBY and Ralph W. Bilby, as Executor of the Estate of Marguerite Mansfield Bilby, deceased, Appellee.

No. 6508.

Supreme Court of Arizona.

April 27, 1960.

Raul H. Castro, County Atty., and Lyle R. Allen, Chief Civil Deputy County Atty., Pima County, Tucson, for appellant.

Boyle, Bilby, Thompson & Shoenhair, and Richard B. Evans, Tucson, for appellee.

BERNSTEIN, Justice.

This is an appeal by Pima County (hereinafter called the 'County') from an order granting the motion of plaintiff-appellee (hereinafter called the 'plaintiff') for a new trial and vacating the verdict and judgment in favor of the County.

Plaintiff is the owner of two parcels of land located in Pima County on the Southwest corner of Pima Avenue and Alvernon Way. A gasoline service station is operated on the corner parcel by third parties under a lease from plaintiff; the adjoining parcel is vacant and unimproved. Prior to 1954 Alvernon Way was a paved two-lane street with drainage ditches on each side to carry the natural flow of water. The street was practically level with plaintiff's land and there was no appreciable grade in the approaches thereto.

During 1954 the County reconstructed Alvernon Way into an inverted crown roadway by lowering its center from two to three feet, thus creating an upward grade of ingress to, and a downward grade of egress from, plaintiff's land. As a result of the reconstruction three to four lanes of traffic can generally pass on Alvernon Way and the natural flow of drainage water is now carried on the lowered center of the roadway.

Plaintiff commenced the instant action against the County on the theory of inverse eminent domain, claiming that he is entitled to damages caused by the change of grade and by the partial conversion of Alvernon Way into a drainage ditch. The action was tried before the court and a jury; the latter rendered a verdict in favor of the County. After judgment was entered on the verdict, plaintiff moved for a new trial on the grounds that the verdict and judgment were contrary to the law and the evidence. The County appeals from the order granting plaintiff's motion.

The County assigns two errors: the first relating to the legal sufficiency of the order under review, and the second to plaintiff's right of action to recover his alleged damages. For ease of analysis we shall discuss these assignments in inverse order to determine whether the order granting a new trial should be affirmed.

The County's second assignment of error is as follows:

'The court erred in failing to dismiss at the close of Plaintiff's case and at the close of all the evidence, for the reason that the entire proceedings were contrary to law in that no damages may be recovered from the public by the abutter for change of grade of a public highway.'

Section 17, Article 2, of the Arizona Constitution, A.R.S., provides, in part:

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

As the County did not institute eminent domain proceedings under Articles 2 or 3 of Chapter 8, Title 12, of our statutes, A.R.S. §§ 12-1111 et seq., 12-1141 et seq., and as there is no statutory procedure prescribed for the commencement of an action by the plaintiff against the County, plaintiff has sued herein on the theory of inverse eminent domain, relying on the Constitution itself. This Court has previously held Section 17, Article 2, of the Arizona Constitution to be self-executing (County of Mohave v. Chamberlin, 78 Ariz. 422, 281 P.2d 128), and it is perfectly clear that the absence of enabling legislation cannot deprive plaintiff of his constitutional right to just compensation for any of his private property which is 'taken or damaged' by the County. It thus becomes necessary to review the decisions of this Court interpreting the above constitutional provision to determine whether plaintiff's property was 'taken or damaged' as a result of the County's reconstruction of Alvernon Way.

In the early case of Mosher v. City of Phoenix, 39 Ariz. 470, 482, 7 P.2d 622, 627, this Court stated 'Our Constitution provides that property shall not be 'taken or damaged' without just compensation therefor. Article 2, § 17. Under provisions like this, it is generally held that a change in the established grade of a street, which injuriously affects the value of adjoining property, is 'damage.' * * * The damage is to the easement of ingress and egress. * * * And the measure of damage is the difference between the value of the abutting property before and after the change of grade.'

In re Forsstrom, 44 Ariz. 472, 38 P.2d 878, and Grande v. Casson, 50 Ariz. 397, 72 P.2d 676, which limited the rule set forth in Mosher v. City of Phoenix, supra, were in turn expressly overruled in State ex rel. Morrison v. Thelberg, 1960, 87 Ariz. 318, 350 P.2d 988 (reversing on rehearing State ex rel. Morrison v. Thelberg, 86 Ariz. 263, 344 P.2d 1015). There, this Court held that abutting land owners are entitled to damages for impairment of access to a highway which is converted into a controlled-access highway, and stated:

'We therefore overruled the principle laid down in In re Forsstrom and Grande v. Casson, supra, which declared the noncompensability of an abutting property owner for the destruction or substantial impairment of his right of access to such highway. We also reject the reasoning upon which the rule rests i. e., that there is a presumption of payment. The rule to the contrary, supported by the weight of authority, is based upon the fact that an abutting property owner to a highway has an easement of ingress and egress to and from his property which constitutes a property right.'

This rule that a land owner is entitled to damages resulting from a change in the established grade of an abutting street or highway is in accord with the prevailing weight of authority and takes proper account of the specific provisions of our Constitution. As set forth in 2 Nichols on Eminent Domain § 6.4441 (3rd Ed.), where the constitution of a particular state provides for compensation only where private property is 'taken,' a land owner does not have a right of action for a change in the grade of an abutting highway or for a deprivation of access to such highway; but where the constitution, as in Arizona, prescribes compensation for the 'taking' or 'damaging' of private property, the land owner is entitled to recover damages resulting from such change of grade or deprivation of access.

See also 2 Nichols, supra, where it is stated:

'Where the constitution or statutes of the state allow an owner compensation when his property is damaged for the public use, the interference with that right, even by the lawful alteration of the grade of the street in front of his property, in such a way as to depreciate the market value thereof, is a damage within the meaning of such provisions.' (§ 6.4441).

'It is accordingly well settled, in states in which such provisions are in force [i. e., prescribing compensation for damaging as well as taking property], that when the means of ingress and egress of premises abutting upon a public street to and from the street are physically obstructed by the manner in which the street is used, altered, or improved under legislative authority, whether the new use is or is not a legitimate street use, or whether the abutter or the public owns the fee, the owner of such premises is entitled to compensation so far as such impairment of access depreciates the market value of his property.' (§ 6.4442)

This rule reflects dissatisfaction with the theory, expressed in In re Foresstrom, supra, and other cases, that when the original right of way was acquired by condemnation or dedication, the abutting land owner received full compensation or waived any payment for damages that may result from a subsequent change in the grade of or access to such right of way. As stated in 2 Nichols, supra, § 6.4441, this theory 'is no longer considered any more true in legal theory than it probably ever was in actual practice.'

Another dissatisfaction with the Forsstrom rule is that it permits the inference that the court and jury in an action to condemn a new right of way may award compensation for damages caused not only by the use then contemplated but also by any possible use which may result from a change of grade or access in the future. Thus, the rule announced in Thelberg and followed here confines damages to the proposed use and does not permit the jury toe speculate on the damages that may result from presently uncontemplated future changes in use.

Where a change is made in the established grade of a highway, the measure of damages to be awarded to the abutting land owner is, as stated in Mosher v. City of Phoenix, supra, 'the difference between the value of the abutting property before and after the change of grade.' See also State ex rel. Morrison v. Thelberg, supra; Jahr, Eminent Domain, Valuation and Procedure, § 167 (1953).

Two conclusions applicable to the instant case follow from this measure of damages. First, the claimed conversion of Alvernon Way into a drainage ditch which during short periods in the rainy season carries so much water as to interfere with the access to plaintiff's land, is only one of the factors to be considered by the jury in determining the market value of the land, and may not be the basis for a separate and distinct award of damages. See 2 Nichols, supra, § 6.4441.

Second, the abutting land owner is entitled to compensation only if the jury finds that...