State ex rel. Miller v. J.R. Norton Co., 2

• Decision Date: 07 June 1988
• Docket Number: No. 2,CA-CV,2
• Citation: 760 P.2d 1099,158 Ariz. 50
• Parties: STATE of Arizona, ex rel., Charles L. MILLER, Director, Department of Transportation, Plaintiff/Appellant/Cross-Appellee, v. J.R. NORTON COMPANY, an Arizona corporation, Defendant/Appellee/Cross-Appellant. 88-0130.
• Court: Arizona Court of Appeals

Page 1099

760 P.2d 1099

158 Ariz. 50

STATE of Arizona, ex rel., Charles L. MILLER, Director, Department of Transportation, Plaintiff/Appellant/Cross-Appellee, v. J.R. NORTON COMPANY, an Arizona corporation, Defendant/Appellee/Cross-Appellant.

No. 2 CA-CV 88-0130.

Court of Appeals of Arizona,

Division 2, Department A.

June 7, 1988.

Petition and Cross-Petition to Review Denied Sept. 27, 1988.

[158 Ariz. 51] Robert K. Corbin, Atty. Gen. by Richard Kamps and Diana P. Stabler, Phoenix, for plaintiff/appellant/cross-appellee.

Beus, Gilbert, Wake & Morrill by Martin A. Aronson and Rick Cecala, Phoenix, for defendant/appellee/cross-appellant.

OPINION

HATHAWAY, Judge.

The State of Arizona appeals from a jury award of severance damages to the landowner in a condemnation action.

J.R. Norton Company (appellee) is the owner of a parcel of land located at the corner of 24th Street and Culver Street in Phoenix. The parcel is improved with an office building and a parking lot. The state took a portion of the land to allow space for a ramp onto the East Papago Freeway from 24th Street. No portion of the building or parking lot was taken. The parties stipulated to the value of the land taken and that issue is not before us. The jury awarded appellee $87,000 in severance damages. The state's motions for judgment n.o.v. and for a new trial were denied.

The state raises six issues on appeal: (1) the trial court erred in allowing the jury to consider change in access caused by the placement of a median on 24th Street as an element of damages; (2) the court erred in submitting the question of reasonableness of access to the jury rather than ruling on the issue as a matter of law; (3) the court erred in permitting the jury to consider proximity to the roadway and an increase in noise in considering severance damages; (4) the court erred in refusing to give requested instructions on noise and proximity; (5) there was not sufficient evidence to permit the jury to consider the issue of severance damages; (6) the judge who presided at trial should not have been bound by a ruling on a motion previously made by another judge. We agree with appellant's first argument and reverse and remand.

In addition to taking part of appellee's land, the state is installing a median on 24th Street which will prevent northbound traffic on 24th Street from turning left onto the street leading to appellee's parking lot. Also, traffic leaving appellee's property will not be able to turn left onto 24th Street. Appellant argues that it was error for the court to permit the jury to consider the change in access as an element of damages. We agree. Damage to land resulting from the exercise of a state's police power is noncompensable. The placement of a median is a valid exercise of police power. Rayburn v. State, ex rel. Willey, 93 Ariz. 54, 378 P.2d 496 (1963), is directly on point. There the state condemned a portion of Rayburn's property during the construction of the Black Canyon Freeway in Phoenix. The state also changed the traffic flow in front of Rayburn's property from two-way to one-way only. The supreme court, in affirming an award of severance damages, stated:

While there can be no doubt from the evidence that the alteration in the traffic flow on Twenty-third Avenue and Buckeye Road as they abut the appellant's property adversely affected her from a pecuniary standpoint, it is well established that not all elements of damage resulting from a highway improvement are compensable. (citation omitted) The cases are virtually unanimous in holding that an owner is not entitled to compensation when the traffic flow on an abutting street is converted from two-way traffic to one-way only, (citations omitted) or when a traffic divider or island is constructed on the abutting street, (citations omitted).

93 Ariz. at 57, 378 P.2d at 498.

We are not persuaded by appellee's attempt to distinguish Rayburn. There, as here, the change in the flow of traffic was incidental to a highway improvement. The regulation of traffic is an exercise of the state's police power, unrelated to the condemnation and noncompensable. It was error to permit the jury to consider the circuity in access. The judgment must be reversed. Because some of the remaining issues will be raised during retrial, we address them now for the sake of judicial economy.

The second argument raised, whether reasonableness of access is a question of law or fact, is moot given our resolution of the issue discussed above.

Appellant next argues that the jury should not have been permitted to consider proximity to the roadway, and the increase in noise in determining severance damages. Appellant argues that traffic noise and proximity to the road are not compensable as they do not constitute separate and distinct elements of severance damages.

Appellant cites an annotation entitled Traffic Noise and Vibration from Highway as Element of Damages in Eminent Domain, for the proposition that the general rule is that noise and vibration emanating from traffic using the new or remodeled roads do not constitute separate and distinct elements of severance damages. Annot., 51 A.L.R.3d 860, 864 (1973). We believe appellant's argument misses...