Rayburn v. State ex rel. Willey

• Decision Date: 30 January 1963
• Docket Number: No. 7257,7257
• Citation: 378 P.2d 496,93 Ariz. 54
• Parties: Hazel M. RAYBURN, Appellant, v. STATE of Arizona ex rel. William E. WILLEY, Appellee.
• Court: Arizona Supreme Court

Page 496

378 P.2d 496

93 Ariz. 54

Hazel M. RAYBURN, Appellant, v. STATE of Arizona ex rel. William E. WILLEY, Appellee.

No. 7257.

Supreme Court of Arizona, In Division.

Jan. 30, 1963.

Rehearing Denied Feb. 26, 1963.

Stephen B. Rayburn and Marshall W. Haislip, Phoenix, for appellant.

Robert W. Pickrell, Atty. Gen., and Jay Dushoff, Sp. Asst. Atty. Gen., for appellee.

H. Earl Rogge, Jr., City Atty., for City of Tucson, amicus curiae.

T. J. MAHONEY, Superior Court Judge.

This is an appeal from a verdict of the Superior Court of Maricopa County rendered in a condemnation action instituted by the State of Arizona against appellant, Hazel M. Rayburn, and others. Rayburn is the only defendant who appeals from the judgment of the court below.

The action arose out of the construction by the state highway department of a portion of the Black Canyon Freeway in Phoenix, Arizona. The Black Canyon Freeway now occupies the block formerly bounded by Twenty-second and Twnety-third Avenues. Twenty-second Avenue was converted to a one-way access road for northbound traffic and Twenty-third to a one-way access road for southbound traffic. The Rayburn property is located on the northwest corner of Twenty-third Avenue and Buckeye Road, the latter running east and west bordering the property on the south. The property condemned consisted of approximately 546 square feet, encompassing a three foot strip on the south edge along Buckeye Road and a somewhat larger portion of the southeast corner rounding it out. Appellant was awarded $1,000 by the jury as the value of the land taken but nothing as severance damages to the remainder. Severance damages were awarded, however, in the amount of $2,883, divided by the jury $2,383 to the lessee and $500 to the sub-lessee.

Appellant sets forth eight assignments of error which will be discussed in connection with the three broad issues raised by the appeal. The first four assignments, argued under one proposition of law, are to the effect that the trial court erred in not permitting the introduction of certain evidence as to alleged damage resulting from (a) the conversion of Twenty-third Avenue as it abuts appellant's property on the east from a two-way road to a one-way access road; and (b) the construction of a traffic island divider on Buckeye Road preventing eastbound traffic from turning north across Buckeye Road into appellant's property. It is urged that the asserted damage the defendant suffered may properly be considered as 'severance damages.'

By A.R.S. § 12-1122 it is provided:

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

'1. The value of the property sought to be condemned and all improvements thereon pertaining to the realty, and of each and every separate estate or interest therein, and if it consists of different parcels, the value of each parcel and each estate or interest therein separately.

'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.

'3. How much the portion not sought to be condemned and each estate or interest therein will be benefited separately, if at all, by construction of the improvement proposed by plaintiff. * * *

* * *

* * *

'B. As far as practicable, compensation shall be assessed for each source of damage separately.'

By paragraph 2 where the property sought to be condemned is part of a larger parcel the damages authorized fall into two categories. First, damages accruing to the portion not sought to be condemned by reason of severance and second, damages by reason of the construction of the proposed improvement. While strictly speaking damages in the second category are not severance damages, they have been lumped in the same paragraph by the legislature, possibly for convenience. However, this fact, that is, that they are to be found in the same paragraph does not change any substantive rule of law as to what damages are compensable. The statute merely recognizes that such damages may exist.

While there can be no doubt from the evidence that the alteration in the traffic flow on Twenty-third Avenue and Buckeye Road as they abut the appellant's property adversely affected her from a pecuniary standpoint, it is well established that not all elements of damage resulting from a highway improvement are compensable. State ex rel. Sullivan v. Carrow, 57 Ariz. 434, 114 P.2d 896. The cases are virtually unanimous in holding that an owner is not entitled to compensation when the traffic flow on an abutting street is converted from two-way traffic to one-way only, Walker v. State, 48 Wash.2d 587, 295 P.2d 328; State v. Peterson, 134 Mont. 52, 328 P.2d 617; People ex rel. Dept. of Public Works v. Ayon, 54 Cal.2d 217, 5 Cal.Rptr. 151, 352 P.2d 519; or when a traffic divider or island is constructed on the abutting street, Holman v. State of California 97 Cal.App.2d 237, 217 P.2d 448; People v. Sayig, 101 Cal.App.2d 890, 226 P.2d 702; State v. Fox, 53 Wash.2d 216, 332 P.2d 943; Springville Banking Co. v. Burton, 10 Utah 2d 100, 349 P.2d 157; Dept. of Public Works & Bldgs. v. Mabee, 22 Ill.2d 202, 174 N.E.2d 801.

Appellant claims damages for loss of ingress and egress, citing as authority for her position the cases of Pima County v. Bilby, 87 Ariz. 366, 351 P.2d 647, and State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 350 P.2d 988. These cases are not in point since here there was no change in grade or direct access to the streets. The only change is in the direction of the traffic flow on the abutting streets and the devices designed to control that flow. State v. Peterson, supra, cited in Thelberg, goes to the crux of this whole matter with this statement approved from other courts:

"'The benefits which come and go from the changing currents of travel are not matters in respect to which any individual has any vested right against the judgment of the public authorities.' If the public authorities could never change a street or highway without paying all persons along such thoroughfares for their loss of business, the cost would be prohibitive. The highways primarily are for the benefit of the traveling public, and are only incidentally for the benefit of those who are engaged in business along its way. They build up their businesses knowing that new roads may be built that will largely take away the traveling public. This is a risk they must necessarily assume."

We do not doubt that appellant's property has been reduced in value by the changes which have taken place in the...