State ex rel. Herman v. Larriva's Ace Elec. Co.

• Decision Date: 26 February 1970
• Docket Number: No. 2,CA-CIV,2
• Citation: 465 P.2d 589,11 Ariz.App. 452
• Parties: The STATE of Arizona, ex rel., Justin HERMAN, Director, Arizona Highway Department, Appellant, v. LARRIVA'S ACE ELECTRIC CO., an Arizona corporation, Appellee. 725.
• Court: Arizona Court of Appeals

Page 589

465 P.2d 589

11 Ariz.App. 452

The STATE of Arizona, ex rel., Justin HERMAN, Director, Arizona Highway Department, Appellant, v. LARRIVA'S ACE ELECTRIC CO., an Arizona corporation, Appellee.

No. 2 CA-CIV 725.

Court of Appeals of Arizona, Division 2.

Feb. 26, 1970.

As Amended on Denial of Rehearing April 9, 1970.

Review Denied May 5, 1970.

Gary K. Nelson, Atty. Gen., by William Kimble, Sp. Asst. Atty. Gen., Phoenix, for appellant.

Karam & Martin, by Robert Martin and Nasib Karam, Nogales, for appellee.

HOWARD, Chief Judge.

In the 'before situation' the appellee's property consisted of Lots 1, 3 and 4 of Block 11, City of Nogales, with a total area of 26,112 square feet. As part of the construction of Interstate 19 in Nogales, Arizona, the appellant State of Arizona took 3,790 square feet or almost one-half of Lot 1. In the 'before situation' the subject property was a corner lot bounded on the east by Terrace Avenue, a one-way street for northbound traffic, on the north by Crawford Street, a conventional two- way street, and on the south partially by Mix Street. Lot 1 composed the corner and was improved with an old apartment building.

On May 2, 1967 the Arizona State Highway Commission pursuant to the recommendations of the State Highway Director passed a resolution reciting that the public necessity, safety and convenience required the improvement of the portion of the Tucson-Nogales Highway. The resolution referred to a highway map which map and resolution showed the part of appellee's property that was to be taken. In February of 1968 and before the issuing of the summons and complaint, the appellee began construction of a business building on the property. On April 25, 1968 the summons and complaint were issued.

In order to fully comprehend the facts in this case, a description of the property after the construction of the building is necessary. From north to south the lots of the subject property are arranged as follows: Lot 1, Lot 3 and Lot 4. The building was constructed on Lot 3, the middle lot, and overlapped slightly on Lot 4. Lot 1 in the 'before' situation had a frontage of 96 feet on Terrace Avenue. Appellant took the northern one-half of this lot. Since the taking was not at a right angle to the easterly boundary of Lot 1, the frontage left on Terrace Avenue was 58.68 feet.

Appellant appeals only from that part of the judgment which awarded severance damages, its sole contention being that the court erred in denying its motion to strike appellee's testimony as to severance damages.

Appellee's evidence as to severance damages was presented by Pierre Baffert, a real estate appraiser, and by Richard Larriva, an officer of the appellee corporation. Appellant maintains that this testimony was based upon improper considerations and thus should have been stricken by the trial judge.

The appellee, in essence, contends that if these witnesses testified to the fact of severance damages, the reasons that they gave should be ignored. We do not agree with this contention. Both Baffert and Larriva claimed that the reason they attributed severance damages was because of the fact that the land was not being put to its most efficient use since had appellee known exactly where the right-of-way line was going to be, then appellee could have built its building all the way up to the right-of-way line. They testified that constructing the building in such a manner would have prevented the island of land which now exists in the 'after' situation between the building and the right-of-way line. They also testified that the west side of Lot 1 is curbed in the 'after' situation.

We first consider the question of damages due to the appellee failing to construct its building up to the right-of-way line. Larriva testified at the trial that the appellant would not tell him where the final right-of-way line would be. Because of this the architects advised him not to build on Lot 1. We do note that the appellee was not without some guidance as to the location of the right-of-way line since it was served with a copy of the summons and complaint which had attached thereto a map showing the location of the right-of-way line. In fact, in the final construction of the highway, the actual right-of-way line on the ground coincided with that represented on the map. Until such time as the summons and complaint was issued, appellee's freedom of use of its land was in no way infringed upon or restricted by the passing of a mere resolution on the part of the State. State ex rel. Willey v. Griggs, 89 Ariz. 70, 358 P.2d 174 (1960); Weintraub v. Flood Control District of Maricopa Co., 104 Ariz. 566, 456 P.2d 936 (1969); Schock v. Jacka, 105 Ariz. 131, 460 P.2d 185 (1969); City of Tucson v. Melnykovich, 10 Ariz.App. 145, 457 P.2d 307 (1969).

The rationale behind these cases is that the mere passing of a resolution is nothing more than an indication of intent on the part of the condemning authority which they may change at any time in the future and the land owner should not be subjected to uncertainty and be prevented from using his land in any manner he may wish. The fact that a resolution has been passed does not necessarily mean that the property will ever be...