State ex rel. Morrison v. Helm

• Decision Date: 21 October 1959
• Docket Number: No. 6692,6692
• Citation: 345 P.2d 202,86 Ariz. 275
• Parties: STATE of Arizona ex rel. Robert MORRISON, Attorney General, Appellant, v. Jack T. HELM, Norbert J. Abel, Karl F. Abel and L. C. Wilkerson, co-partners, doing business as Transportation Services, Inc., Appellees.
• Court: Arizona Supreme Court

Page 202

345 P.2d 202

86 Ariz. 275

STATE of Arizona ex rel. Robert MORRISON, Attorney General, Appellant, v. Jack T. HELM, Norbert J. Abel, Karl F. Abel and L. C. Wilkerson, co-partners, doing business as Transportation Services, Inc., Appellees.

No. 6692.

Supreme Court of Arizona.

Oct. 21, 1959.

Rehearing Denied Nov. 24, 1959.

Wade Church, Atty. Gen., and Charles L. Hardy, Asst. Atty. Gen., for appellant.

Jennings, Strouss, Salmon & Trask and William T. Birmingham, for appellees.

STANFORD, Superior Court Judge.

This is a condemnation proceeding instituted by the State for the purpose of acquiring a portion of the property of the defendants needed in the process of widening and reconstructing the existing Phoenix-Cordes Junction Highway.

On November 4, 1957, the trial court awarded defendants Elton C. McJunkin and Marjorie P. McJunkin, the owners of the fee, a judgment against the State for the sum of $33,000 as damages for the taking of their interest in the real property. There was no appeal from the judgment and appellant is now the fee owner of the property sought to be condemned.

On February 7, 1958, judgment was entered fixing the damages which would result from the taking of the leasehold interest of appellees Jack T. Helm, Norbert J. Abel, Karl F. Abel, and L. C. Wilkerson, co-partners doing business as Transportation Services, Inc., in the sum of $240,000. Appellant perfected its appeal from this judgment entered in favor of appellees and, while this appeal was pending, appellant moved to dismiss the complaint and vacate the judgment.

It is appellees' position that the State cannot now abandon its condemnation proceedings; that upon the trial court's finding and written judgment thereon, title vested in the State and appellees' right to compensation has become vested.

While the right to abandon condemnation proceedings may be relinquished by agreement or lost by estoppel, the general rule is that in the absence of a statute ance may be had, an eminent domain profixing the time within which a discontinuceeding may be discontinued at any time before the rights of the parties have become reciprocally vested. Annotation: 121 A.L.R. 12, 16, and cases cited therein; 30 C.J.S. Eminent Domain § 335(b).

In the case of South Carolina State Highway Department v. Bobotes, 180 S.C. 183, 185 S.E. 165, 121 A.L.R. 1, 2, it was held that:

'* * * in the absence of statutory abridgment, the right of the condemnor to discontinue the proceedings and reject the property sought to be acquired cannot be denied as a general rule. This right, however, is not an absolute one. There is a well-defined point of time or stage of the proceedings after which the right to abandon is lost. The vesting of the owner's right to compensation is considered the pivotal fact which determines the incidence of that stage of the proceedings, and such vesting of the right to compensation is concurrent with the taking of the property becoming complete. * * *

'* * * In those states having constitutional requirements that private property shall not be taken for public purposes without just compensation first being made therefor, it is almost uniformly held, in the absence of actual entry, that the taking does not become complete until the condemnor pays or tenders the amount of the final award to the property owner * * *.

'By virtue of such fixation of time at which the taking is rendered complete, the courts generally hold that 'the condemnation proceedings, the award or verdict and judgment therein merely serve the office of fixing and determining the value of the property sought, that the condemning party has the election of accepting the award and acquiring the property or rejecting the award and abandoning the proceedings'; * * * Such recognized right of election seems to be based upon considerations of public policy, which requires that the cost of a proposed project be first ascertained before it is finally determined to launch the enterprise.'

In the case of Manion v. Louisville, St. L. & T. Ry. Co., 90 Ky. 491, 14 S.W. 532, 533, the court held that

'The weight of authority undoubtedly is that, in the absence of statutory provision, the effect of provisions for condemnation is simply to fix the price at which the party condemning can take the property, and that even after condemnation or judgment the purpose of taking the property may be abandoned without incurring any liability to pay the damages awarded. Lewis, Em.Dom. § 656. Such is the correct rule on the subject, and to adjudge otherwise would require the applicant, whether a private corporation or a state or municipality, to submit to the imposition of exorbitant values upon property condemned for public use, and to often take possession or purchase that which would be detrimental instead of beneficial to the public interests.'

In the case of Danforth v. United States, 308 U.S. 271, 284, 60 S.Ct. 231, 236, 84 L.Ed. 240, the United States Supreme Court states:

'Unless a taking has occurred previously in actuality or by a statutory provision, which fixes the time of taking by an event such as the filing of an action, we are of the view that the taking in a condemnation suit under this statute takes place upon the payment of the money award by the condemnor. * * * Until taking, the condemnor may discontinue or abandon his effort. The determination of the award is an offer subject to acceptance by the condemnor and thus gives to the user of the sovereign power of eminent domain an opportunity to determine whether the valuations leave the cost of completion within his resources. Condemnation is a means by which the sovereign may find out what any piece of property will cost. 'The owner is protected by the rule that title does not pass until compensation has been ascertained and paid * * *.'

There are other cases which hold that the condemnor any abandon the proceedings at any time before the rights of the parties are reciprocally vested: Oklahoma Turnpike Authority v. Dye, 208 Okl. 396, 256 P.2d 438; State ex rel. Struntz v. Spokane County, 85 Wash. 187, 147 P. 879; State v. Calkins, Wash., 342 P.2d 620; Selle v. City of Fayetteville, 207 Ark. 966, 184 S.W.2d 58; State v. Flamme, 217 Ind. 149, 26 N.E.2d 917; Department of Public Works and Building v. O'Brien, 402 Ill. 89, 83 N.E.2d 280; De Penning v. Iowa Power & Light Co., 239 Iowa 950, 33 N.W.2d 503, 5 A.L.R.2d 716.

The Arizona statutes which govern these proceedings, A.R.S. sections 12-1111 to 12-1128, are derived from California's Code of Civil Procedure, sections 1238 to 1255. An additional provision (section 1255a) has been enacted in California which provides that the

'plaintiff may abandon the proceedings at any time after the filing of the complaint and before the expiration of thirty days after final judgment * * *.'

In People v. Superior Court of Los Angeles County, 47 Cal.App.2d 393, 118 P.2d 47, the court held that the only change wrought in the situation by the enactment of section 1255a, supra, was that of limiting the right of abandonment to thirty days after final judgment. The court held that the reasoning of the earlier California case of Pool v. Butler, 141 Cal. 46, 74 P. 444, was still applicable, except for the limitation on the time for abandonment provided for in said section 1255a. In the Pool case, 74 P. at page 445, the court said:

'* * * But a plaintiff seeking to condemn land for a public use does not, by bringing the action to condemn, bind himself to take the land and pay the compensation fixed by the court or jury, since it may be so great as to make the proposed use impossible, or the delay in obtaining the right to use the land for the purpose intended may permit another to acquire a competitive use of other lands fo the same purpose, and thus make his use undesirable, even if the compensation were reasonable. Hence a plaintiff in such action is conceded to have a right to abandon the proceeding and decline to take the land; the question then being, at what stage of the condemnation proceedings may he abandon the enterprise or decline to take the property? Pending the motion for a new trial, and later, pending the appeal, it is clear that plaintiffs were not bound to pay or deposit the damages assessed upon the trial; * * *.

'* * * The vesting of the title to the deposit in the defendants is coincident with the vesting of the right to the land for the purposes for which it was sought, but pending the appeal the plaintiffs could assert no right to the land, or its use, under the judgment which had been stayed and suspended by the appeal, during which time the court was powerless to enforce it; nor could the defendants say, 'The right to the money is vested in us, but you shall not have the land.' The title to the land does not vest in the plaintiff until 'the final order of condemnation' is made by the court, and a copy of the order filed in the office of the county recorder, 'and thereupon the property described therein shall vest in the plaintiff for the purposes therein specified.' Code Civ.Proc. § 1253.'

This decision of the District Court of Appeals was upheld by the Supreme Court of California in 120 P.2d 655 without opinion.

The appellees cite a line of cases supporting the theory that the condemnees' right to compensation became vested on the date the proceedings were instituted. See Blue Earth County v. Williams, 196 Minn. 501, 265 N.W. 329; Kahlen v. State, 223 N.Y. 383, 119 N.E. 883; United States v. Sunset Cemetery Co., 7 Cir., 1942, 132 F.2d 163. In Blue Earth County v. Williams, supra, the court held that the court order confirming the award of the commissioners amounted to and in effect was a judgment; and in support thereof cited the case of State ex rel. McFarland v. Erskine, 165 Minn. 303, 308, 206 N.W. 447, 449. In the Erskine case, supra, the court said, 'It may be that the county board has the right to drop proceedings before the making of the order...