State ex rel. Herman v. Schaffer

• Decision Date: 22 October 1973
• Docket Number: No. 11197,No. 5049--T,5049--T,11197
• Citation: State ex rel. Herman v. Schaffer, 110 Ariz. 91, 515 P.2d 593 (Ariz. 1973)
• Parties: , 98 A.L.R.3d 494 STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellant, v. Enos P. SCHAFFER, as his sole and separate property, et al., Appellees. ARIZONA LAND TITLE AND TRUST COMPANY, an Arizona corporation, as Trustee under Trust; and R. S. Lewis and Mary M. Lewis, his wife, Cross- appellants, v. STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Cross-Appellee.
• Court: Arizona Supreme Court

Page 593

515 P.2d 593

110 Ariz. 91, 98 A.L.R.3d 494

STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellant, v.Enos P. SCHAFFER, as his sole and separate property, et al., Appellees.

ARIZONA LAND TITLE AND TRUST COMPANY, an Arizona corporation, as Trusteeunder Trust No. 5049--T; and R. S. Lewis and Mary M. Lewis, his wife, Cross- appellants, v.STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Cross-Appellee.

No. 11197.

Supreme Court of Arizona, In Banc.

Oct. 22, 1973.

Gary K. Nelson, Atty. Gen., Phoenix, by William C. Kimble, Sp. Asst. Atty. Gen., Tucson, for appellant and cross-appellee.

Robert C. Stubbs and James C. Stephens, Tucson, for appellees and cross-appellants.

HOLOHAN, Justice.

This appeal and cross-appeal arises out of the retrial of certain condemnation actions which had been remanded to the superior court for retrial after the decision of this Court in State ex rel. Herman v. Schaffer, 105 Ariz. 478, 467 P.2d 66(1970).

The matter was returned to the court below and proceeded to retrial in three segments.All the defendants were awarded damages in amounts varying from $4,700 to $120,000.An appeal by the State was taken from the verdicts, judgments and orders denying its motions.A cross-appeal was taken by defendantsArizona Land Title and Trust Company and R. S. Lewis and Mary M. Lewis.

This Court granted a petition for transfer of the appeal from the Court of Appeals because a resolution of this matter rests upon an interpretation of our prior decision.

The eminent domain action was against seventeen parcels of land located along Interstate Highway 10, formerly known as U.S. 80, in an area northwest of Tucson called Jaynes Station.The facts concerning the location of the property before the taking and after were previously set forth in Schaffer:

'All of the properties abutted both sides of the highway along a one-and-one-quarter-mile strip between Sunset Road and Ruthrauff Road.Prior to its conversion to a limited-access highway, U.S. 80 was a divided road with certain designated crossovers.Along the one-and-one-quarter-mile strip in question there were seven such crossovers put in by the State in accordance with an agreement with the property owners, made at the time the State acquired the right of way.Thus all of the properties had direct access to both the northbound and southbound lanes of traffic.

'Interstate 10 was constructed entirely within the existing right of way so that it was not necessary to take any land.However, the crossovers were eliminated, and a fence was constructed along the sides of the highway, thereby eliminating the property owners' direct access to the mainstream of traffic.But the State constructed two-way frontage roads on either side of the highway, on which roads all of the properties abutted.The ramps connecting to the frontage roads were located about a half mile to the north and south of the subject properties.'State ex rel. Herman v. Schaffer, Supra, at105 Ariz. 479, 467 P.2d at 67.

The appellant has raised six questions on appeal which may be refined to four issues.First, was there a contract with all the parcel owners?Second, to what damages, if any, were the landowners entitled?Third, did the trial court err in the admission of certain evidence?Fourth, did the evidence justify the amounts given in the verdicts and judgments?

The cross-appellants present one question: Did the trial court commit reversible error in instructing the jury on the issue of 'good faith' improvements on the land to be taken.

The State contends that its motion for summary judgment should have been granted because the issue of contract damages had been fully litigated in the first trial and the issue decided; therefore the issue should not have been retried.This contention is based on the erroneous conclusion that this Court reversed the first cases solely because the trial court would have allowed damages for loss of direct access.

In Schafferthe Court held that the owners of land abutting a highway have a right of access to the public road system, but that access need not be direct access.If reasonable access to the highway is provided to the abutting landowner, he is not entitled to compensation.This Court found from the evidence that the frontage road provided by the State for the landowners provided reasonable access to the highway; therefore the limitation of access was not compensable.This holding was based on the principles of law governing a limitation of access under the police power of the state.The Court pointed out that an additional matter was involved in the case: 'However, a contractual element is injected into this case.' and as to this additional element the Court stated its holding:

'We therefore hold that, as a matter of law, the State breached its agreement and the measure of damages, if any, should be computed, in accordance with the rule we have set forth herein, at the time that the breach occurred.'Schaffer, Supra, 105 Ariz. at 486--487, 467 P.2d at 74--75.

By the agreement the landowners were entitled to direct access to the highway in both northbound and southbound lanes.This direct access was a matter controlled by contract, and it was a matter quite distinct from limiting access under the police power.By reversing the judgments of the superior court and remanding the cases for further proceedings consistent with the decision, it should be apparent that the cases were returned to the trial court for retrial on the damage issue arising out of the breach of the agreement by the State.The trial court correctly denied the State's motion for summary judgment.

The agreement between the State and the original landowners created an easement appurtenant to the land which right runs with the land.Solana Land Co. v. Murphey, 69 Ariz. 117, 210 P.2d 593(1949).Thus any subsequent owners and lessees are entitled to the rights incident to the easement and damages for its loss.

The State complains that, although several of the owners had agreements with the State for the original taking of land in 1950, there were others who refused to sell at that time, and the State was required to obtain the original right-of-way by condemnation proceedings.As to these owners, the State contends that there was never any contract and they should not be allowed to receive damages on the basis that the State breached an agreement.

The evidence discloses that the State had express agreements with some landowners, but it brought actions in condemnation against others.In the decision on the first appeal, this Court made no distinction between any of the defendants.We said that 'as a matter of law, the State breached its agreement.'Nothing was said that limited the breach to some owners and not all; therefore, the 'law of the case' is that there were agreements with all the owners.Whether this was an erroneous conclusion is of no moment now.This State has followed the policy that at some time litigation must end so the parties can rely on a final decision.In re Monaghan's Estate, 71 Ariz. 334, 227 P.2d 227(1951).(See discussion inMcGovern v. Kraus, 200 Wis. 64, 227 N.W. 300, 67 A.L.R. 1381.)Although we do not look upon the rule of the case doctrine with favor, it is the one we have chosen to follow.In re Monaghan's Estate, Supra, discusses the meaning of the rule:

'What is meant by the phrase 'law of the case?'The court first discussed it in Snyder v. Pima County, 6 Ariz. 41, 53 P. 6, in the following language: '* * * Even though we should now be convinced that this court had made a mistake in its former judgment, directing the district court to overrule the demurrer and proceed to trial, yet that judgment is the law in this case.Its construction is more than Stare decisis.It becomes Res adjudicata.While this court may reserve to itself the right to reverse that decision as it may be applied to another case, yet it is well settled that a judgment of an appellate court in a case becomes the law of that particular case, and is not subject to review thereafter on second appeal.(Citing cases.) * * *'

'The same rule is stated in Commercial Credit Co. v. Street, 37 Ariz. 204, 291 P. 1003, 1004, quoting4 C.J., Sec. 3075, p. 1093: 'It is a rule of general application that the decision of an appellate court in a case is the law of that case on the points presented throughout all the subsequent proceedings in the case in both the trial and the appellate courts, and no question necessarily involved and decided on that appeal will be considered on a second appeal or writ of error in the same case, provided the facts and issues are substantially the same as those on which the first decision rested, and, according to some authorities, provided the decision is on the merits.This doctrine is not one whose extension is looked upon with favor, and it is adhered to in the single case in which it arises and is not carried into other cases as a precedent.'See also, 5 C.J.S. Appeal and Error § 1821.'71 Ariz. 335--336, 227 P.2d 228.

The trial court correctly treated the decision of this Court as applying to all the defendant landowners, and the court did not err in submitting the case to the jury on the breach of agreement as to all of the defendants.

The State challenges the admission into evidence of a letter by Ben E. Stanton, Chief Right of Way Agent for the Highway Department, to J. R. Van Horn, the State Highway Engineer, dated December 19, 1962.The State contends that its only purpose was to prejudice the jury.The State points out the objectionable parts of the letter as:

'We have been advised through various sources that the construction of this frontage road will result in numerous inverse condemnation suits based on the Thelberg decision that the access rights of the abutting properties have been impaired and are entitled to compensation.

'It is our contention that...