State ex rel. Herman v. Schaffer

• Citation: 467 P.2d 66,105 Ariz. 478
• Decision Date: 26 March 1970
• Docket Number: No. 9836--PR,9836--PR
• Parties: , 42 A.L.R.3d 1 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.
• Court: Supreme Court of Arizona

Page 66

467 P.2d 66

105 Ariz. 478, 42 A.L.R.3d 1

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.

No. 9836--PR.

Supreme Court of Arizona, In Banc.

March 26, 1970.

Rehearing Denied April 28, 1970.

Gary K. Nelson, Atty. Gen., Darrel F. Smith, former Atty. Gen., William Kimble, Sp. Asst. Atty. Gen., for appellant.

Dunseath, Stubbs & Burch, by Robert C. Stubbs, Hirsch, Van Slyke & Ollason, by Gerald B. Hirsch, Tucson, for appellees.

McFARLAND, Justice:

The State of Arizona filed this action in eminent domain against seventeen parcels of land located along Interstate Highway 10, formerly known as the Casa Grande Highway, U.S. 80, in the Jane's Station are northwest of Tucson. 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.

Thus, for example, a motorist proceeding north towards Phoenix would leave the main highway approximately 2,000 feet south of Ruthrauff Road via a ramp, straight ahead to the easterly frontage road. If he sought to visit one of the businesses on the other side, or westerly side, of the highway he would turn left on Ruthrauff Road, pass under the highway and turn right directly onto the frontage road. Because both frontage roads are two way, a traveller need not retrace his steps to return to the main highway, but can continue in the same direction to rejoin the mainstream of traffic. Again, for example, the motorist travelling north towards Phoenix can, after stopping at one of the properties involved, continue in the same direction some 2,000 feet to Sunset Road and rejoin the mainstream of traffic.

On March 29, 1965, the trial court ordered that the issue raised by the State's claim for declaratory relief be tried separately with the issue of damages to abide the decision. The State's claim was tried to the court on December 21, 1965, and, on March 8, 1966, the court rendered its decision that the State's action in limiting access to the properties constituted a taking of private property, and was compensable. A jury trial to determine damages was ordered.

On March 18, 1966, two defendants, owning four parcels of land, moved to sever their action from the others, and on April 28, 1966, the court granted the motion and fixed October 3, 1966, as the date of trial. On March 22, 1966, the remaining defendants moved for separate trials, which was denied on April 28, 1966, and November 14, 1966, was set as the trial date.

On October 17, 1966, the jury returned a verdict in favor of the State and against the first two of the defendants. On February 3, 1967, after 34 days of trial, the jury returned verdicts in favor of the State and against the defendants, Schaffer, Megna, Lewis, Honnas, Runnels, Davis, Stroh, Eicholtz, and Hague (Tucson Truck Service). It also returned verdicts in favor of Vick in the amount of $8,000; Soloman in the amount of $10,000; Davis in the amount of $8,000, and Hague (Hague Truck Stop) in the amount of $10,000.

Subsequently, all the parties involved filed motions directed to the verdict and judgment, including motions for a new trial by the defendants. The State moved for judgment N.O.V., which was denied. The motions by the defendants, Arizona Land Title & Trust Company and Jeter were denied by Judge Garrett. Subsequently, Judge Collins granted the motion for a new trial for the remaining defendants on the following grounds:

'1. That the verdicts granted insufficient damages to the defendants;

'2. That the verdicts were not justified by the evidence;

'3. That there was error in the admission and rejection of evidence;

'4. That there was error in giving and refusing instructions;

'5. That the verdicts were contrary to law;

'6. That it was improper for Judge Garrett to deny defendants' Motion for Separate Trials.'

The motion referred to in number 6 was the motion of March 22, 1966, which Judge Garrett denied on April 28, 1966.

The State appeals from this order, and from the order denying its Motion for Judgment N.O.V. We take the latter question first.

It is the State's position that controlling direct access to an interstate highway is an exercise of its police power, not eminent domain, and is not a taking of property so as to be compensable.

A limited access highway has been defined as follows:

'A limited-access highway, sometimes referred to as a thruway or a freeway, is not an ordinary highway but an entirely new concept in highways which has made its appearance in recent years as a result of the many changes in the lives and mobility of the general public brought about by the introduction and increasingly prevalent use of the automobile. It is a highway where ingress and egress may be had only at certain designated points which are to be determined by the highway authorities. The very purpose of such roads is to provide fast and safe through traffic. To bring this about, it is necessary that there be limited access to the highway, thereby eliminating danger of accidents and also affording economic advantages which would best serve the public interests. Limited-access highways are of no use, however, if the public is not provided reasonable means to enter and leave the highway system. It is imperative, therefore, that although the access be limited, reasonable access also be granted to those requiring use of the highway. It is for this reason that most acts providing for limited-access highways authorized the construction of supplementary service roads.' 3 Nichols, Eminent Domain, p. 386 (3d.Ed.)

There is no argument that the State has the authority to limit access in the construction of such a highway. The problem arises as to whether such action is compensable, and there is a great diversity of opinion among the courts of the several States.

'The decisions of the courts seem to fall into three major categories:

'(1) That any loss which results from being placed upon a frontage road is not to be compensated in eminent domain whether land is taken or not;

'(2) That any loss resulting from being placed on a frontage road should be compensated but the frontage road should be considered in mitigation;

'(3) That any loss resulting from being placed on a frontage road should be compensated only when accompanied by a taking of land, and that the existence of a frontage road should be considered in mitigation.' Nichols, supra, at pp. 387--88.

There are two areas, however, where there is more agreement between the courts. Where a limited-access highway is constructed on a new location--as contrasted with using the existing right of way--neither the new abutting owners nor the ones abutting on the former highway, which becomes a service road, are entitled to compensation. See State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 350 P.2d 988; Lehman v. Iowa State Highway Commission, 251 Iowa 77, 99 N.W.2d 404. Also, there is generally more agreement that compensation is due where the limitation amounts to a complete destruction of the abutter's practical access. See e.g.: Smith v. State Highway Commission, 185 Kan. 445, 346 P.2d 259; Carazalla v. State, 269 Wis. 593, 70 N.W.2d 208, 71 N.W.2d 276.

It is in the latter area that the basis for a solution to the problem may be found if we add to the requirement of 'complete destruction' the added condition that the ingress and egress to the limited-access highway as provided by a frontage road be not so circuitous as to be unreasonable.

We hold--in agreement with the ever-increasing trend of authority--that Direct access to a highway is not a private property right within the contemplation of Article 2, Section 17 of the Arizona Constitution, A.R.S., which provides, in part:

'* * * No private propery shall be taken or damaged for public or private use without just compensation * * *.'

We incline towards the reasoning expressed by the Kansas Supreme Court in Brock v. State Highway Commission, 195 Kan. 361, 404 P.2d 934:

'In support of the above contention the appellants argue that 'the construction of a frontage road between a landowner's property and a pre-existing public highway is the taking of the common law right of direct access as a matter of law.' Some of our decisions cited by appellants, and which will be considered later, would appear to support their argument. However, it would also appear that controlled access highways, and the necessity therefor, under our modern addiction to increased speed on the highways, has created an entirely new concept not known at the time the common law or case law was developed.

'This new concept, which was not fully recognized in our previous decisions, requires a complete review and reappraisal of the correlative rights of the general public and owners of abutting lands where controlled access highways are reasonably necessary to protect the safety and convenience of the traveling public.

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