Pima County v. Palos Companies Unlimited

• Decision Date: 10 April 1984
• Docket Number: No. 2,CA-CIV,2
• Citation: 682 P.2d 1148,140 Ariz. 481
• Parties: PIMA COUNTY, a body politic and corporate, Plaintiff/Appellant, and Estes Homes, Plaintiff-Intervenor/Appellant, v. PALOS COMPANIES UNLIMITED, a California corporation; Joan Choi, et vir.; and Kwan Kih Minn and Young Soo Minn, husband and wife, Defendants/Appellees. 4987.
• Court: Arizona Court of Appeals

Page 1148

682 P.2d 1148

140 Ariz. 481

PIMA COUNTY, a body politic and corporate, Plaintiff/Appellant and Estes Homes, Plaintiff-Intervenor/Appellant, v. PALOS COMPANIES UNLIMITED, a California corporation; Joan Choi, et vir.; and Kwan Kih Minn and Young Soo Minn, husband and wife, Defendants/Appellees.

No. 2 CA-CIV 4987.

Court of Appeals of Arizona Division 2.

April 10, 1984.

Review Denied June 26, 1984.

Stephen D. Neely, Pima County Atty. by John R. Neubauer, Tucson, for plaintiff/appellant Pima County.

Miller & Pitt, P.C. by Gerald Maltz and Linda A. Drake, Tucson, for plaintiff-intervenor/appellant Estes Homes.

J. Emery Barker, Tucson, for defendants/appellees.

OPINION

HOWARD, Judge.

This is an eminent domain case involving the construction of a drainage ditch. The determinative issue is whether appellees proved severance damages. We hold that they did not.

The subject property is flat, undeveloped desert land consisting of 78 acres (parcel 6G) and a private road (parcel 8A) which led south from the property to the Irvington Road alignment. The property was zoned for a trailer park but its location in the 100-year flood plain inhibited its full development since it was subject to flooding at depths of up to two feet during heavy rains.

The Irvington Road alignment was nothing more than that, an alignment, in other words, the location of Irvington Road if it were extended in a westerly direction. Although the alignment was dedicated, the right-of-way was not open to public travel. Furthermore, the county had no intention of opening the road for public use. In fact, one of the members of the board of directors of the landowner testified that they were aware when the property was purchased in 1980 that the Irvington Road alignment might never be opened for public use.

There was a conflict in the testimony as to whether there was access from Mission Road, a major north-south road in the area, to the northwest portion of parcel 6G by means of a road in an existing mobile home subdivision located along the northern boundary of parcel 6G. The county's expert witnesses testified that the road was opened to the public for public use but the landowner testified that the owner of the mobile home subdivision said the road was private and could not be used by the owners of parcel 6G. The public purpose for which defendants' property was condemned was the construction of a major drainage channel to divert flood waters of the west branch of the Santa Cruz River and the realignment of Valley Road. The drainage channel cuts across the southeast corner of parcel 6G and proceeds through parcel 8A. The total amount of land taken by the county consists of 1.53 acres. After the construction of the project, Valley Road will be realigned so that it travels along the northern border of the west branch channel as it goes by parcel 6G, giving access from parcel 6G to Valley Road. Valley Road then will tie into a relocated Irvington Road southwest of the subject property. The portion of Valley Road to which parcel 6G will have access will not be open for public travel until the development in the area warrants it.

It was the testimony of the landowners' own engineering witness that the access to the subject property after the completion of the construction will be as good as or better than it was before.

The landowners' testimony on damages came from the president of the corporation, Joan Choi, and from a hydrologist, James H. Nelson. Although the landowner had hired an appraiser to determine its damages, the appraiser did not testify at trial. Instead, Mrs. Choi testified that the before value of the property was "substantially more" than the $490,000 Palos Companies paid for it. There was no evidence of the value of the property in the "after" situation, Choi being of the opinion that the property in the after situation was "landlocked". The damage testimony on severance damages came from Nelson who testified that it would cost approximately $114,000 to put a bridge across the west bank channel in order to secure access to the Irvington alignment. There was also evidence of other cost-to-cure damages.

The county put on expert appraisal evidence of the value of the property before and after the taking. Its expert testified that there were no severance damages and the value of the part taken was $14,546.40. The jury returned a verdict in favor of the landowner awarding it $14,546.40 for the 1.53 acres taken plus $73,000 severance damages.

The county contends the trial court erred in denying plaintiffs' motion for a directed verdict and in refusing to instruct the jury that there were no severance damages and that it should return a verdict in the amount testified to by Mr. Klafter, $14,546.40. We agree.

Relying on Pima County v. DeConcini, 79 Ariz. 154, 285 P.2d 609 (1955) and State ex rel. Herman v. Southern Pacific Company, 8 Ariz.App. 238, 445 P.2d 186 (1968), it is the landowners' contention that their evidence concerning the construction of a bridge across the drainage channel is a competent method of proving its severance damages. We do not agree. Severance damages are determined by the difference between the fair market value of the remaining property before and after the taking. Pima County v. Bilby, 87 Ariz. 366, 351 P.2d 647 (1960); Pima County v. DeConcini, supra; American Savings Life Insurance Company v. State, 13 Ariz.App. 336, 476 P.2d 680 (1970). While evidence of the cost to restore the property to a condition before the taking may be admissible on the issue of damages, it is not a separate measure of damages. In the case of Sacramento and San Joaquin Drainage District v. Goehring, 91 Cal.Rptr. 375, 13 Cal.App.3d 58 (1970), the property owners had introduced into evidence the estimated additional cost of a pumping and draining facility in the "after" condition of the property as contrasted with the "before" condition. In holding that this evidence had no independent probative value the court stated:

"The items noted above are classified as 'cost to cure' items and are compensable. (5 Nichols on Eminent Domain (3d ed.), § 23.2.) Nevertheless, the measure of damages is the decrease in market value of the property. (People ex rel. Dept....