State ex rel. Herman v. Wilson

• Decision Date: 13 March 1968
• Docket Number: No. 8930--PR,8930--PR
• Parties: , 42 A.L.R.3d 134 STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellant and Cross-Appellee, v. Jack A. WILSON and Violet R. Wilson, his wife, Appellees and Cross-Appellants. STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellant and Cross-Appellee, v. James L. FINLEY and Margaret I. Finley, his wife, Appellees and Cross-Appellants.
• Court: Arizona Supreme Court

Page 760

438 P.2d 760

103 Ariz. 194, 42 A.L.R.3d 134

STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellant and Cross-Appellee, v. Jack A. WILSON and Violet R. Wilson, his wife, Appellees and Cross-Appellants.

STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellant and Cross-Appellee, v. James L. FINLEY and Margaret I. Finley, his wife, Appellees and Cross-Appellants.

No. 8930--PR.

Supreme Court of Arizona, In Banc.

March 13, 1968.

Darrell F. Smith, Atty. Gen., William E. Kimble, Special Asst. Atty. Gen., Tucson, for appellant and cross-appellee.

Dunseath, Stubbs & Burch, Tucson, for appellees and cross-appellants.

STRUCKMEYER, Justice.

This appeal arises out of two actions in eminent domain brought by the State of Arizona and consolidated for trial. Judgments for the condemnees, the Wilsons and the Finleys, were entered in the superior court, appealed by the State and cross-appealed by both the Wilsons and Finleys. The Court of Appeals set aside the judgments and remanded the causes for new trial, 4 Ariz.App. 420, 420 P.2d 992, on rehearing 4 Ariz.App. 577, 422 P.2d 408. Opinions of the Court of Appeals vacated.

The condemnations grew out of the conversion of State Route #86 into U.S. Interstate #10 between Willcox and Benson, Arizona. Prior to the taking of the property, Highway #86 was a four-lane divided highway with direct access permitted from the abutting property on both sides. The Wilson and the Finley properties fronted on the southeast edge of the northeastbound lanes, and frontage was taken from both properties in order to construct an interchange at a point known as Dragoon Road. After the interchange was completed, the right-of-way was fenced off so entrance could be had only at the interchange by means of Dragoon Road.

The Wilson property consists of approximately 185 acres located in Texas Canyon, an area of unusual rock formations considered to be extremely scenic. On it, the Wilsons operated the Triangle T Motel and Guest Ranch. In 1956, Highway #86 ran through the property, 25 acres being to the north of the roadway and 160 acres to the south. There were about 2,000 feet of frontage with direct access from both sides of the highway. At about midpoint a ten-by-ten cement culvert passed under the highway through which motor vehicles could be driven, so that there was access to both parts of the Triangle T Ranch. The highway is somewhat higher than the 160 acres on the south, hence travelers can look directly down Texas Canyou upon the guest ranch and, since the access to the property was approximately in the middle of the frontage, the entrance was visible for 300 feet in either direction. Travelers desiring to avail themselves of the guest ranch facilities had ample opportunity to slow down and turn off onto the Triangle T access road.

After Highway #86 was fenced because of its conversion to a limited-access highway, Interstate #10, visitors no longer had direct access to the ranch but had to use the Dragoon Road Interchange, between 800 or 900 feet west of appellees' property. A traveler going east must take a ramp road 1500 feet west of the interchange, leave the ramp at Dragoon Road, turn south and go about three-quarters of a mile, then turn off Dragoon Road and turn onto the Wilson property, the building still being approximately 2,000 feet away. A westbound traveler must go past the Wilson property, turn onto the interchange approximately 500 feet beyond the overpass of Dragoon Road and Interstate #10, turn back to Dragoon Road, pass under Interstate #10 and then go to the Wilson property on Dragoon Road in the same manner as the traveler coming from the west.

At the trial there was testimony from expert witnesses for appellees that the highest and best use of the property was for resort and recreational purposes. There was also testimony that the market value of the property was substantially reduced by the loss of direct access to the highway. Over the State's objection, a witness testified that approximately 4,000 vehicles traveled the highway during the course of a 24-hour period. The court instructed the jury:

'In valuing the property of the defendants before the condemnation, you may consider evidence concerning the amount of traffic which passed along the highway in the vicinity of defendants' property.'

There was testimony from Mrs. Wilson that after the loss of direct access to the highway the gross volume of business 'suffered one-third drop.' '* * * It was disastrous. Probably two a year come in where many did before.'

The State argues first that the testimony concerning the amount of traffic and the decline in business was improperly submitted to the jury for the reason that access rights are personal to the owners of the abutting property with no access right in the general public. If by this is meant that there is a compensable damage only for the individual owner's personal loss of use, such an abnormal limitation is rejected forthwith. Access may be defined as the right vested in the owner of land which adjoins a road or other highway to go and return from his own land to the road or highway without obstruction. Stoner Mannfacturing Corp. v. Young Men's Christian Assoc'n. of Aurora, 13 Ill.2d 162, 148 N.E.2d 441. Such a right, to be of any substantial utility, must necessarily include the owner's invitees and licensees.

'The * * * right of access would seem to include the opportunity for a man's customers to come to his place of business without unreasonable hindrance or interruption.' Reining v. New York L.W. Ry. Co., 13 N.Y.S. 238, 240.

It would be an insubstantial right, indeed, were this Court to hold that the owner's family, servants, friends and guests are unable to pass to and from the property at his invitation.

The State complains that the court permitted the jury to consider evidence concerning the amount of traffic which passed along the highway in the vicinity of defendants' property within a 24-hour period. While it is to be acknowledged that an abutting owner does not have the right to insist that traffic pass over the highway in front of his property undiverted and unobstructed, Rayburn v. State ex rel. Willey, 93 Ariz. 54, 378 P.2d 496, this does not mean that if traffic is using the highway an abutting property owner may not profit from its flow. And if travelers who were formerly attracted to the Triangle T Ranch do not now find their way onto the property because of the lack of direct access, manifestly it is the destruction of the access which has reduced the business profits and, therefore, the valuation as a commercial property. That property has intrinsic value arising out of its uniqueness cannot be doubted. The Triangle T is unique because of a scenic location with its ready accessibility to traffic flow. So, while the State is under no duty or obligation to send traffic past appellees' property, as long as the traffic does pass, the appellees are entitled to avail themselves of it in common with other abutting owners. The trial court did not err in permitting the jury to consider the amount of traffic flow as support for the expert appraisers' opinions that the value of the property was diminished through loss of accessibility to such flow.

The appellant complains that the court erred in permitting the jury to consider loss of business as an item of damage. While we have said that evidence of business earnings is ordinarily improper in condemnation actions, City of Phoenix v. Consolidated Water Co., 101 Ariz. 43, 415 P.2d 866, it is not every loss of business which is impermissible, Maricopa County v. Shell Oil Co., 84 Ariz. 325, 327 P.2d 1005. Irrespective, we do not understand that Mrs. Wilson's testimony was offered to prove the amount of appellees' damages but to establish that appellees were damaged. Her testimony established that the access rights were valuable and led to the inference that there was a diminution in the highest and best use of the property occasioned by the impairment of access. From such a loss the jury could conclude that the expert's opinion of a reduction in the market value was reasonably supported by facts. In passing, it is to be noted that the trial court correctly instructed the jury that it was not to consider any claim of loss or impairment of business 'inasmuch as the law permits damages to be awarded for injury to property but not injury to business conducted thereon.'

The State argues that access to existing highways may be regulated under the police power of the state where reasonably designed to promote the public safety and welfare. We recognize that there are a number of states which, in recent years, have adopted the principle that the right of direct access to a public highway may be limited to frontage roads and possibly to other circumstances in which access is not unreasonably circuitous. See e.g., Ray v. State Highway Comm., 196 Kan. 13, 410 P.2d 278; cert. denied 385 U.S. 820, 87 S.Ct. 43, 17 L.Ed.2d 57, 43 A.L.R.2d 1072; Houghs v. Mackie, 1 Mich.App. 554, 137 N.W.2d 289; Moses v. State Highway Commission, 261 N.C. 316, 134 S.E.2d 664; State Highway Commission v. Central Paving Co., 240 Or. 71, 399 P.2d 1019; Stefan Auto Body v. State Highway Commission, 21 Wis.2d 363, 124 N.W.2d 319; and Covey, Frontage Roads: To Compensate or not to Compensate, 56 Nw.U.L.Rev. 587.

But we do not have such a situation here for there is no frontage road and the substitute access road is, in our opinion, unreasonably circuitous. Accordingly we hold, consistent with our former decisions, that the complete destruction of direct access to a public highway constitutes a damaging of property within the meaning of the Constitution of Arizona. Art. II, § 17 A.R.S. See Pima County v. Bilby, 87 Ariz. 366, 351 P.2d 647.

In 1956, the State Highway Department purchased an easement from the Wilsons for the purpose of making Highway #86...