Sanitary Dist. No. 1 of Pima County v. State ex rel. Willey

• Decision Date: 24 February 1965
• Docket Number: No. 2,CA-CIV,2
• Citation: 1 Ariz.App. 45,399 P.2d 179
• Parties: SANITARY DISTRICT NO. 1 OF PIMA COUNTY, Arizona, and City of Tucson, a municipal corporation, Appellants, v. STATE of Arizona ex rel. William E. WILLEY, State Highway Engineer, Appellee. 17.
• Court: Arizona Court of Appeals

Page 179

399 P.2d 179

1 Ariz.App. 45

SANITARY DISTRICT NO. 1 OF PIMA COUNTY, Arizona, and City of Tucson, a municipal corporation, Appellants, v. STATE of Arizona ex rel. William E. WILLEY, State Highway Engineer, Appellee.

No. 2 CA-CIV 17.

Court of Appeals of Arizona.

Feb. 24, 1965.

Chandler, Tullar, Udall & Richmond, by James L. Richmond, Tucson, for appellant Sanitary District No. 1.

Calvin Webster, City Atty., Tucson, for appellant City of Tucson.

Robert W. Pickrell, Former Atty. Gen., Darrell F. Smith, Atty. Gen., by J. Mercer Johnson, Sp. Asst. Atty. Gen., Tucson, for appellee.

MOLLOY, Judge.

This case arises out of a controversy between the State of Arizona, the Sanitary District No. 1 of Pima County, Arizona, and the City of Tucson as to which of these publice agencies should pay for the cost of relocating a sewer line, the relocation of which is made necessary by highway construction.

The lower court rendered judgment in favor of the State requiring both defendants, and each of them, to 'remove' from the right-of-way of the State of Arizona the sewer line in question at the intersection of state highway Route 84 with Grant Road in Tucson, Arizona. At this intersection, the relocation of a 30 inch interceptor sewer line constructed by the defendant Sanitary District in 1949-50 was made necessary by the construction in 1960-61 of an underpass under the state highway for the passage of Grant Road, a public street in the City of Tucson.

The subject state highway is a part of the federal interstate system. The underpass in question is being constructed as an urban project with federal financing in part, the sponsoring public body being Pima County.

The right-of-way in which the subject sewer line was constructed was acquired by the plaintiff for a state highway some time prior to 1949. A written permit for the installation of the sewer at the place where it was installed was issued by the plaintiff November 25, 1949.

Plaintiff's complaint is based upon paragraph 6 of this permit, which provides as follows:

'That if at any time hereafter the right of way, or any portion thereof, occupied and used by the Licensee may be needed or required by the Licensor, any permit or license granted in pursuance of this application, may be revoked by the Licensor and all right thereunder terminated, and upon sufficient notice, the Licensee shall and will remove all property belonging to said Licensee.'

The plaintiff for its cause of action against the defendant City of Tucson alleged that the city had an 'interest in the above described sewer line acquired since the date of the above described permit'. This was denied by the city in its answer and no proof was offered thereon at the time of the trial. There was, however, a stipulation by counsel for all of the parties to the effect that: 'The City of Tucson's interest in the pipeline on the State's right-of-way is by agreement to maintain it for its entire length in the exercise of the governmental function.'

It was further stipulated at the time of trial that it was necessary to reconstruct the highway at the intersection in question and that by virtue of said construction it would be necessary to relocate the interceptor sewer in question so as not to interfere with the traffic which would be passing through the new underpass to be constructed. The plaintiff established that it gave written notice to remove the portion of the sewer line in question and there is no contention made that the notice was unreasonably short.

Both defendants have appealed from the judgment of the lower court.

The City of Tucson predicates error on the basis that the court had no evidence whatsoever before it from which it could find there was any obligation on the part of the defendant City of Tucson to remove the sewer line in question.

This assignment can be disposed of almost summarily. In order to grant relief, there must be some legal theory upon which it is based, and some evidence in support thereof. There is neither in this case. From the stipulation that the City is obligated to 'maintain' the sewer line in question, there arises no obligation to remove same. State ex rel. City of Chillicothe v. Wilder, 200 Mo. 97, 98 S.W. 465 (1906); American Trust Co. v. Trust Insurance Exchange, 147 Cal.App.2d 395, 305 P.2d 73 (1957).

As far as it appears from the record, there is no other interest of the City of Tucson in this particular sewer line. The judgment against the City of Tucson should therefore be reversed.

The defendant Sanitary District contends that the court erred in three respects: (1) that the permit in question expired by its own terms as of September 1, 1950; (2) that the plaintiff was estopped from denying the right of the Sanitary District to maintain its sewer line in the location where it was constructed; and (3) that the court should have determined upon which public agency fell the obligation of relocating the sewer line in question, rather than merely ordering the line removed from the intersection.

The contention of the Sanitary district that the permit in question expired by its terms arises principally from words: 'Expiration date: 9/1/50', which were appended to the document in question by the deputy state engineer of the Arizona State Highway Department when the permit in question was issued.

The pemit is a standard from of the Arizona State Highway Department, which the evidence indicates has been used for many years for the issuance of permits similar to the one here. The permit is in the form of a letter addressed to the Arizona State Highway Commission which is signed by the applicant. There are various blanks in the letter to be filled in by the applicant. One of these blanks is for the 'purpose' of the project and this was filled in by the applicant-Sanitary District with the words: 'Constructing a sewer known as the 'West' Interceptor Sewer for Sanitary District No. 1 of Pima County, Arizona'.

After the letter-application is a space provided for the approval of the district engineer; here there was typed in above the approval signature: 'Completion date, September 1, 1950'.

The next portion of the document is labeled: 'Permit and License' and is devoted to an approval by the Arizona State Highway Department. This permit was signed on behalf of the Highway Department on November 25, 1949. To the left of the approval signature there appear the words upon which the defendants place great significance: 'Expiration date: 9/1/50'.

Emphasizing the portions quoted above, the argument is made by the Sanitary District that the permit was only for the 'constructing' of a sewer and not for the keeping of the construction on the right-of-way after construction. Under this argument, the permit by its terms, together with all obligations thereunder, expired on September 1, 1950.

A contract should always be construed as a whole, and all portions thereof given a reasonble meaning, in the light of all other provisions. Hamberlin v. Townsend, 76 Ariz. 191, 261 P.2d 1003 (1953); Employer's Liability Assurance Corporation v. Lunt, 82 Ariz. 320, 313 P.2d 393 (1957).

So construing this agreement, it is apparent that there are several provisions of this permit which were intended to have effect beyond the 'expiration date' specified in the contract. There is, for instance, the provision in paragraph '5' of the permit:

'That if the title and possession of any property placed upon the right of way by the Licensee remains in said Licensee, the Licensee shall and will promptly perform all necessary repair work upon written notice from the Licensor, and will not permit or allow any condition to exist which would be a hazard or source of danger to the traveling public.'

Given their literal meaning, the words: '* * * if at any time hereafter * * *' contained in paragraph '6', the paragraph with which we are concerned here, indicate an intent to extend the obligations so prefaced indefinitely into the future.

The words: 'Expiration date: 9/1/50' do not appear to have been a part of the agreement when executed by the applicant. These words are obviously tied in with the words: 'Completion date, September 1, 1950', also added to the contract by the highway department personnel after the Sanitary District made its application.

A contract should be construed in the light of the surrounding circumstances. Smith v. Neely, 93 Ariz. 291, 380 P.2d 148 (1963). Here, the work contemplated is of a type intended to take some limited time to construct, with the results of such construction to remain in the ground for an indefinite time into the future. Both the construction and the keeping thereof on the public highway are subjects which should be controlled and regulated so as to not interfere with the traveling public unnecessarily. The permit in question is the only written agreement between the parties pertaining to this sewer line.

Considering these surrounding circumstances, and reading the contract as a whole, this court comes to the conclusion that the 'expiration' date in question applies to the time when the construction work itself was to be completed and does not invalidate those other provisions of the agreement extending into the future.

Without assigning any error in respect thereto, the Sanitary District argues in its brief that there was no authority shown in the agent who executed the application for the permit in question for the Sanitary District to commit it to the removal of this sewer line. This is true. However, there was no allegation made by the Sanitary District in its answer that there was any lack of authority on the part of this agent. We are dealing with a defense which must be raised affirmatively. City of Phoenix v. Linsenmeyer, 86 Ariz. 328, 346 P.2d 140 (1959). Moreover, the question of lack of authority was raised for the first time on appeal, and this is too late. Smith v. Rabb, 95 Ariz. 49, 386 P.2d 649 (1963).

But, even if...