Pima County v. De Concini

• Decision Date: 05 July 1955
• Docket Number: No. 6027,6027
• Citation: Pima County v. De Concini, 79 Ariz. 154, 285 P.2d 609 (Ariz. 1955)
• Parties: PIMA COUNTY, State of Arizona, and the Board of Supervisors of Pima County, Arizona, and Charles Lamb, Lambert Kautenberger and Thomas S. Jay, Appellants, v. Evo DE CONCINI and Ora De Concini, his wife, Appellees.
• Court: Arizona Supreme Court

Page 609

285 P.2d 609

79 Ariz. 154

PIMA COUNTY, State of Arizona, and the Board of Supervisors of Pima County, Arizona, and Charles Lamb, Lambert Kautenberger and Thomas S. Jay, Appellants, v. Evo DE CONCINI and Ora De Concini, his wife, Appellees.

No. 6027.

Supreme Court of Arizona.

July 5, 1955.

Gordon G. Aldrich, Deputy County Atty., for appellants.

James Elliott Dunseath, Tucson, for appellees.

WINDES, Justice.

The appellees, plaintiffs below, are owners of a tract of land lying along the south border of a highway laid out by the appellant, Pima County, Arizona. On October 15, 1951, the board of supervisors ordered that the highway be widened in such a manner that it necessitated taking a 35-foot strip of plaintiffs' land for a distance of approximately 2640 feet constituting about two acres. Plaintiffs appeared at the meeting of the board of supervisors at the time the foregoing order was issued and advised the board that the value of the land to be taken was $2,500 but that if the highway should be so constructed as to not destroy the avenues of ingress and egress to the remaining land, they would claim no compensation for the land taken nor for damages to the remainder. Defendants refused to give assurance that the rights of ingress and egress would not be disturbed and adopted a final resolution allowing neither compensation nor damages. Plaintiffs posted bond and appealed to the superior court under the provisions of section 59-601, A.C.A.1939. The notice of appeal filed with the superior court alleged the value of the property taken to be $2,500 and that the amount of damage to the remaining property had not been determined and prayed that the board of supervisors fix the amount of cost bond and certify all judgments, orders, resolutions together with original papers, plans and evidence as by statute provided.

At the beginning of the trial, plaintiffs asked and secured leave of court to amend the notice by increasing the alleged value of the land taken by $84.40 and adding to the prayer a request that the court render judgment in the sum of $2,584.40 as compensation for the ladn taken and for such severance damage as the evidence shows to be reasonable and proper with interest and costs. The matter was tried with evidence being submitted concerning the value of the land taken and severance damages. Plaintiffs sought and were allowed to amend the prayer to conform to the proof by asking severance damages in the sum of $45,800. Defendant objected to these amendments but did not ask for continuance at the time of the respective amendments.

The court rendered judgment awarding compensation for the land taken in the sum of $2,584.40 and severance damages in the sum of $41,906.50 with six percent interest from October 15, 1951. Defendants appeal submitting the following two assignments of error:

'1. (a) The court erred in taking evidence of a so-called 'burden' to the lands of the appellees, in addition to the evidence of severance damage. Separate appraisals of elements comprising severance damage are inadmissible except to aid the court in arriving at a value.

'(b) The court erred in denying the defendants-appellants' motion to strike the testimony concerned with the 'burden' on the land. Separate appraisals added together give a cost figure rather than a value figure. The latter is the true inquiry required in condemnation actions.

'2. It was error to deny the appellants a continuance because the lack in the appellees' pleading, and the appellees' trial amendments resulted in surprise and prejudice to the appellants.'

There was ample evidence to prove that in the process of widening the highway the defendants constructed in front of plaintiffs' remaining property a drainag ditch approximately 48 feet wide and three to four feet deep which completely destroyed ingress and egress on the north side of the property. Plaintiffs submitted three witnesses qualified as valuation experts who had conferred prior to the trial and who testified substantially as follows:

Prior to the taking, the entire tract had a value of $80,500. They gave a breakdown of this total in the following manner: the northwest corner consisting of approximately one acre adapted for service station, $25,000; approximately nine acres adapted for a shopping center, $18,000; the notheast corner adapted for small stores constituting five acres, $7,500; and the balance of approximately fifty acres for residential use at $600 per acre, or $30,000. They calculated the value of the part taken on a square footage basis at $2,584.40 leaving a value to the remaining land before taking without considering severance damage of $77,915.60. They further testified that with the drainage ditch access to the highway was destroyed and because...