State ex rel. Herman v. Electrical Dist. No. 2 of Pinal County

• Decision Date: 08 May 1970
• Docket Number: No. 2,CA-CIV,2
• Citation: 469 P.2d 114,12 Ariz.App. 222
• Parties: The STATE of Arizona, ex rel., Justin HERMAN, Director, Arizona Highway Department, Appellant, v. ELECTRICAL DISTRICT NO. 2 OF PINAL COUNTY, Arizona, a body corporate, Appellee. 796.
• Court: Arizona Court of Appeals

Page 114

469 P.2d 114

12 Ariz.App. 222

The STATE of Arizona, ex rel., Justin HERMAN, Director, Arizona Highway Department, Appellant, v. ELECTRICAL DISTRICT NO. 2 OF PINAL COUNTY, Arizona, a body corporate, Appellee.

No. 2 CA-CIV 796.

Court of Appeals of Arizona, Division 2.

May 8, 1970.

Rehearing Denied June 9, 1970.

Review Granted July 7, 1970.

Gary K. Nelson, Atty. Gen., by Robert V. Kerrick and Stanley Z. Goodfarb, Asst. Attys. Gen., Phoenix, for appellant.

Lewis, Roca, Beauchamp & Linton, by John P. Frank, Phoenix, for appellee.

HOWARD, Chief Judge.

The appellant, hereinafter referred to as the 'State', pursuant to a resolution of the Arizona Highway Commission improving State Highway 287, filed an action against the appellee, hereinafter referred to as the 'District', to require the District to remove, at its own expense, its transmission lines and poles from their existing location in the right-of-way of State Highway 287. ¹

The District defended the action on the following grounds: (1) A.R.S. § 30--549, gave it a vested property right which could be taken only upon the payment of just compensation; (2) its right in the road was senior to that of the State; and (3) it had easements in the new right-of-way.

The trial court, making findings of fact and conclusions of law, agreed with the District's contention that it had senior rights since its facilities were located in the road before it was legally established as a public road. Judgment in favor of the District in the amount stipulated to by the parties as the cost of relocation was entered, and the State appealed. The State challenges the trial court's determination that the District's 'seniority' prevented its being charged with the cost of relocation. We agree.

The trial court expressly found, inter alia, that the District was organized in 1923 pursuant to § 1, Ch. 7, of The Laws of 1923, the forerunner of A.R.S. § 30--501 et seq., that several attempts were made prior to 1927 to establish a legal road 66 feet wide but that no legal road was in fact created until passage of the curative statute of 1927, § 3, Ch. 2, sub. ch. 1, L. '27. 4th. S.S. ²

It also made the following findings: (1) That the District constructed its lines in the area in question by 'license or permission of adjoining landowners' and under the authority of § 23, Ch. 7, L. '23 (3453 R.C. '28) now A.R.S. § 30--549; ³ (2) that subsequent to the construction of the power line the District secured easements from abutting landowners to put electrical lines upon property adjacent to the road; (3) that the easements were acquired by the District at various times from 1926 to 1963; (4) that only one ⁴ was acquired before the 1927 curative statute; and (5) that they were not recorded until 1962. The following conclusions of law were made:

'17. Pinal County did not perfect its right to the Casa Grande-Florence Highway including the stretch here involved, until the curative statute of 1927, A.R.S. § 18--152. The location of the Electrical District's line is senior in time to the legal establishment of the road and therefore, and solely upon the facts of this particular case, the Electrical District is entitled to be compensated for its removal.

19. In the light of the express language of the decision in Sanitary District No. 1 v. State ex rel. Willey, 1 Ariz.App. 45, 399 P.2d 179 (1965), which says that the only exception to the general rule that a public utility has no vested right in maintaining a line in a public highway is where the construction of the line is senior in time to the dedication of the road, the court concludes that the District has no vested right under the language of A.R.S. § 30--549.

20. The decision of the Court rests upon the facts of this case as establishing the use of the roadway by the Electrical District prior to the perfection of any legal right by the County, and does not rest upon the easements, or the taking of easements, as to which no additional recovery is allowed.'

We agree with the trial court that the District acquired no vested right under the predecessor counterpart of A.R.S. § 30--549. Charters, franchises, statutory grants and permits granting the use of public ways to utility locations are subservient, either expressly or by implication, to the police power. The relocation of utility facilities in public ways are at utility expense, unless abrogated by the clear import of the language used in a particular statute. 4 Nichols on Eminent Domain, 3rd Ed. § 15.22; State Highway Commission v. Clackamas Water District, 247 Or. 216, 428 P.2d 395 (1967); Southern California Gas Company v. City of Los Angeles, 50 Cal.2d 713, 329 P.2d 289 (1958). The District, however, contends that the language of the statute clearly imports a legislative intent to give electrical districts a right In perpetuo to maintain facilities and, therefore, the burden of the relocation expense must be borne by the State.

Whether the right contended for by the District could be conferred is arguable. Public ways are held by governmental bodies and their political subdivisions in trust for the use of the public. Moeur v. City of Tempe, 3 Ariz.App. 196, 412 P.2d 878 (1966). For this reason, governmental bodies can grant no more than a permissive user of a public right-of-way. State ex rel. Rich v. Idaho Power Company, 81 Idaho 487, 346 P.2d 596 (1959). We find no clear statutory mandate shifting the burden of the cost of relocation of electrical transmission facilities to the State and, therefore, cannot accept the District's argument. See State ex rel. State Highway Commission v. Town of Grants, 66 N.M. 355, 348 P.2d 274 (1960).

The District urges application of the principle that long continued administrative construction of a statute by the officers charged with its enforcement is entitled to considerable weight in its interpretation. ⁵ It claims the evidence indicates that the State Highway Department had been construing A.R.S. § 30--549 as requiring the State to bear the burden of relocation costs. ⁶ Evidence as to even prior instances of the State's payment of such costs was presented. There was no showing, however, that the circumstances in the seven other cases were similar to the instant situation. In these earlier situations, there might well have been some valid basis for seniority. Furthermore, there was also evidence that on at least one occasion, the State required the utility to relocate at its own expense. We, therefore, decline to accept the rule of statutory construction urged by the District.

The trial court found that the subject road was not legally established until 1927. There being sufficient evidence to support this finding, we accept it, as is our duty. Such finding, therefore, supports the trial court's conclusion that the District's transmission facilities were located on the land before it was acquired by the County. An exception to the general rule requiring the expense of relocation to be borne by a utility is recognized when the installation of the facilities occurred prior to the establishment of the road. Sanitary District No. 1 of Pima County v. State ex rel. Willey, 1 Ariz.App. 45, 399 P.2d 179 (1965); County of Contra Costa v. Central Contra Costa Sanitary District, 182 Cal.App.2d 176, 5 Cal.Rptr. 783 (1960); Green v. Noble, 114 Ohio App. 321, 182 N.E.2d 569 (1961); Magnolia Pipe Line Co. v. City of Tyler, 348 S.W.2d 537 (Tex.1961); State of Tennessee v. United States, 256 F.2d 244 (6th Cir. 1958). In all of these cases recognizing the exception to the general rule, however, we note that the installation of the facilities was pursuant to a privately granted easement.

Although we find nothing in the record supportive thereof, the trial court found as a fact that the District constructed its facilities 'by license or permission of adjoining landowners.' The description 'adjoining landowners' is ambiguous on its face, and we presume that the trial court intended only 'landowners'. Assuming arguendo that the conduct of the landowners evidenced an intent on their part to create a license, see 25 Am.Jur.2d Easements and Licenses § 124, no interest in the land is thereby crated and it is terminable at will. Id. § 123.

The District, however, contends that the license became irrevocable, i.e., where the licensee has incurred expenses in making valuable improvements to the property, the license becomes irrevocable by execution. We do not believe the executed license doctrine is apposite. See Anchor Stone and Materials Co. v. Carlin, 436 P.2d 650 (Okl.1968); Slemons v. Southern California Edison Co., 252 Cal.App.2d 1022, 60 Cal.Rptr. 785 (1967). In Anchor Stone, supra, the plaintiff's predecessor in title gave the defendant permission to lay a pipe line across his property. The plaintiff sought an order requiring the defendant to remove its pipe line and the trial court granted the requested relief. On appeal, the defendant contended that the license had become executed, hence irrevocable, because it had incurred expense in laying the pipe line, resulting in improvement of property. The Oklahoma Supreme Court, in affirming the trial court, stated:

'It is our opinion that the improvement made is not such as to bring the situation herein within the above quoted language ⁷ * * *. In our view, the quoted language contemplates a permanent improvement, inuring to the benefit of the...