State ex rel. Herman v. Wilson

• Citation: 4 Ariz.App. 420,420 P.2d 992
• Decision Date: 06 December 1966
• Docket Number: No. 2,CA-CIV,2
• Parties: STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellant, 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, v. James L. FINLEY and Margaret I. Finley, Appellees. 126.
• Court: Court of Appeals of Arizona

Page 992

420 P.2d 992

4 Ariz.App. 420

STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellant, 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, v. James L. FINLEY and Margaret I. Finley, Appellees.

No. 2 CA-CIV 126.

Court of Appeals of Arizona.

Dec. 6, 1966.

Rehearing Denied Jan. 19, 1967. See 422 P.2d 408.

Darrell F. Smith, Atty. Gen., William E. Kimble, Sp. Asst. Atty. Gen., Tucson, for appellant.

Dunseath, Stubbs & Burch, by Robert C. Stubbs, Tucson, for appellees and cross appellants.

MOLLOY, Judge.

This is an appeal from judgments rendered in two condemnation actions which were consolidated for trial purposes. The actions involved the conversion of State Highway 86, running between Benson and Willcox, Arizona, into U.S. Interstate 10. The two properties concerned lie in Texas Canyon near the intersection of this interstate highway with Dragoon Road, a county road which runs into the interstate highway from the south. The land taken from both property owners was to be used to construct a traffic interchange at this road junction.

As the result of these condemnation actions, both properties would be deprived of all direct access to the interstate highway. In the 'before' situation, both properties had substantial frontages on a highway consisting of two strips of pavement conducting, respectively, east and west traffic. In the vicinity of the two subject properties, there were three crossovers so that westbound traffic could turn into the respective properties. The two strips of pavement in the 'after' situation remained in place, but the crossovers were eliminated and the only access to the properties in question in the future was to be by means of the Dragoon Road interchange, which was designed for low speed, low density traffic. A jury trial lasted for fifteen full trial days and resulted in jury verdicts (1) allowing the Finleys $17,220 for the property taken and $10,530 for severance damages, and (2) allowing the Wilsons $65 for the property taken and $20,763 severance damages. The state has appealed from both judgments and the defendants Wilson have cross-appealed from the judgment in their favor, contending that the damages allowed were inadequate insofar as severance damages are concerned.

The appeal taken by the state is presented in thirteen questions for review. The first seven all question the trial court's rulings upon the nature and extent of an abutting property owner's access rights in a public highway, and the extent to which the damages to access rights sustained in this action were noncompensable because caused by an exercise of the police power of the state. Generally, the state contends that a property owner's right of access in an abutting public highway is a private easement which does not extend to patrons, clients and customers, nor to the traveling public upon the through highway, and that any damage caused to the property owner by interference with access pertaining to such persons is damnum absque injuria because resulting from an exercise of police power.

It is, of course, well-established law that damages resulting from an exercise of the police power of the state are noncompensable. 1 Nichols on Eminent Domain, § 1.42, p. 87 (3d ed. 1964). We believe it also to be the law that a condemnation action may present items of damage which are both compensable and noncompensable, and that if proper objections and requests for jury instructions are made, the trial court has the duty to segregate the compensable from the noncompensable. The following language in Rose v. State, 19 Cal.2d 713, 123 P.2d 505 (1942), is deemed pertinent:

'Whenever it becomes necessary to estimate the amount of damage inflicted upon private property for the benefit of the public, whether or not there is a taking of property in conjunction with the damage, there is a danger that the decline in market value may be attributable to causes other than those for which the landowner is entitled to recover.' 123 P.2d at 519

'Damages resulting from an interference with private rights of property must be estimated with reference to the diminution in value caused by that legal injury. The presence of a single compensable injury, such as the impairment of an easement, should not be made the basis for a recovery of the total depreciation in value of a landowner's property where it appears that much of the depreciation is attributable to legally noncompensable factors.' 123 P.2d at 521--522

The foregoing is well-established law in the State of California. People v. Ricciardi, 23 Cal.2d 390, 144 P.2d 799 (1943), the landmark decision dealing with loss of access rights, is in accord:

'Not every depreciation in the value of the property not taken can be made the basis of an award of damages.' 144 P.2d at 802

Other leading California cases to the same effect are: Sacramento and San Joaquin Drainage District etc. v. Reed, 215 Cal.App.2d 60, 29 Cal.Rptr. 847 (1963); People ex rel. Dept. of Public Works v. Ayon, 54 Cal.2d 217, 5 Cal.Rptr. 151, 352 P.2d 519 (1960); Blumenstein v. City of Long Beach, 143 Cal.App.2d 264, 299 P.2d 347 (1956).

The following are supportive and illustrative of this view: Campbell, The Limited Access Highway--Some Aspects of Compensation, 8 Utah L.Rev. 12, 18--19 (1962--1964); 5 Nichols on Eminent Domain § 18.42(1), pp. 240, 249 (3d ed. 1962); State v. Ensley, 240 Ind. 472, 164 N.E.2d 342 (1960); State v. Fox, 53 Wash.2d 216, 332 P.2d 943 (1958); 26 Am.Jur.2d Eminent Domain § 160, pp. 829--31. We believe it also to be well-established law that the property owner has no property right in the traffic flowing by his property, as such, and that a diversion of such traffic by the state authorities is noncompensable. Rayburn v. State, 93 Ariz. 54, 58, 378 P.2d 496 (1963); Mabe v. State, 86 Idaho 254, 385 P.2d 401 (1963); People v. Ricciardi, 23 Cal.2d 390, 144 P.2d 799, 804 (1943).

While the difference between the 'before' and the 'after' value of real estate has been suggested by our Supreme Court as being a measure of severance damages in condemnation actions, State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 325, 350 P.2d 988 (1960), we do not believe that our Supreme Court has intended the 'before' versus 'after' test to be used in such manner as to include noncompensable damage within the award to property owners in condemnation actions. Accordingly, we approach the problems presented to us on this appeal accepting these basic contentions of the state.

However, in attempting to apply this well-established law to this case, we believe that the state fundamentally misconceives the nature of an abutting property owner's rights of access as established by prior Supreme Court decisions in our state and that much of its argument pertaining to the police power therefore misses the mark.

In State ex rel. Morrison v. Thelberg, supra, the Supreme Court stated:

'* * * an abutting property owner to a highway has an easement of ingress and egress to and from his property which constitutes a property right.' 87 Ariz. at 324, 350 P.2d at 991.

Also:

'When the controlled-access highway is constructed upon the right of way of the conventional highway and the owner's ingress and egress to abutting property has been destroyed or substantially impaired, he may recover damages therefor.' 87 Ariz. at 325, 350 P.2d at 992.

Limiting the nature of this property right is the following in Thelberg:

'It seems to be the law, however, that where land is condemned or purchased for the construction of a controlled-access highway upon a new right of way alongside the old road that an abutting owner of land on the old highway, which is retained as a service road, cannot recover damages for destruction or impairment or loss of access for the reason that his access to the old highway has not been disturbed in the slightest degree. State v. Peterson, 134 Mont. 52, 328 P.2d 617--628.' 87 Ariz. at 324--325, 350 P.2d at 992.

In Thelberg, damages were allowed on the basis that by placing the Thelberg property upon a new frontage road and depriving it of its access to the old roadway, the highest and best use of the remaining portion had been changed from that of commercial to residential. (87 Ariz. at 326, 350 P.2d 988.) It is most apparent in Thelberg that damages were being allowed for the deprivation of access to the through traffic. The result reached is completely inconsistent with appellant's thesis here that the abutting owner's access rights do not include prospective customers who may be a portion of this through traffic. The Thelberg result is also reached in a somewhat different factual situation in State ex rel. Morrison v. Jay Six Cattle Company, 88 Ariz. 97, 353 P.2d 185 (1960).

The same court deciding these cases, however, has held:

"The benefits which come and go from the changing currents of travel are not matters in respect to which any individual has any vested right against the judgment of the public authorities." Rayburn v. State, 93 Ariz. 54, 58, 378 P.2d 496, 499 (1963), quoting from State v. Peterson, 134 Mont. 52, 328 P.2d 617 (1958)

The rationale of these decisions must lie in the essence of the right of access, as recognized by our Supreme Court. The decisions are only reconcilable if the right of access in question is regarded as an easement appurtenant to the abutting, privately owned land attaching to the specific land occupied by the abutting highway as the servient estate. That this is the basic nature of the right in question is indicated by: 26 Am.Jur.2d Eminent Domain § 199, pp. 880--882; 25 Am.Jur. Highways § 154, pp. 448--451; 29A C.J.S. Eminent Domain § 105(1), pp. 424--429; 39 C.J.S. Highways § 141, pp. 1079--1083; Clarke, The Limited Access Highway, 27 Wash.L.Rev. 111, 115.

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