State ex rel. Morrison v. Thelberg

• Decision Date: 06 April 1960
• Docket Number: No. 6713,6713
• Parties: STATE of Arizona ex rel. Robert MORRISON, Attorney General, Appellant, v. Raymond D. THELBERG and Lilian Thelberg, his wife, Appellees.
• Court: Arizona Supreme Court

Page 988

350 P.2d 988

87 Ariz. 318

STATE of Arizona ex rel. Robert MORRISON, Attorney General, Appellant, v. Raymond D. THELBERG and Lilian Thelberg, his wife, Appellees.

No. 6713.

Supreme Court of Arizona.

April 6, 1960.

Robert Morrison, Former Atty. Gen., Wade Church, Present Atty. Gen., Leslie C. Hardy, Chief Asst. Atty. Gen., Charles L. Hardy, Sp. Asst. Atty. Gen., Jay Dushoff, Asst. Atty. Gen., for appellant.

Hall, Catlin & Jones, Tucson, for appellees.

Gust, Rosenfeld, Divelbess & Robinette, Snell & Wilmer, Jennings, Strouss, Salmon & Trask, Evans, Kitchel & Jenckes, Phoenix, Cusick, Watkins & Frey, Darrow, D'Antonio, Hayes & Morales, Lohse, Donahue & Bloom, Evo DeConcini, Conner, Jones & Murphy, Dunseath, Stubbs, Morse & Burch, Tucson, amici curiae.

PHELPS, Justice.

The original decision in this case went down October 14, 1959. See State ex rel. Morrison v. Thelberg, 86 Ariz. 263, 344 P.2d 1015. A motion for rehearing was granted upon the question of the owner's right to compensation for the impairment of his right of access to the new controlled-access highway located upon the old conventional road right of way. Several splended amici curiae briefs were permitted to be filed and the question was considered of sufficient importance to grant requests for argument on rehearing. Counsel having been heard and in view of our decision to overrule, in part, our previous cases upon which the above-mentioned question was decided, we believe it will better clarify the questions involved by substituting this decision in lieu of the original.

The State of Arizona, plaintiff, brought suit to condemn for highway purposes certain land belonging to Raymond D. Thelberg and Lilian Thelberg, his wife, defendants. Judgment was rendered fixing the damages for the condemnation, and from such judgment the State of Arizona has appealed.

The facts material to a determination of the case may be stated as follows: the defendants are the owners of a parcel of property located approximately 170 feet easterly of the intersection of the Tucson-Benson Highway with Craycroft Road in Pima County. Defendants' property is situated on the north side of and abuts on the Tucson-Benson Highway. Prior to the condemnation proceedings defendants' property was in the shape of a parallelogram, the north and south boundaries were 185 feet long, the south boundary being the one that fronts on and abuts the highway, and the east and west boundaries were 308.54 feet long. The grade of the old Tucson-Benson Highway was approximately 21 inches above the defendants' property and defendants had direct and unlimited access thereto. At that time the property was being used by the defendants as a motel, the principal buildings consisting of a residence and three duplex motel units.

Prior to January 17, 1957, the Tucson-Benson Highway was a conventional highway. On January 17, 1957, the Arizona State Highway Commission adopted a resolution authorizing the widening and reconstruction of a portion of said highway, and according to the map and construction plans attached to the resolution, the State proposed to construct a controlled-access highway with separate through roadways for both east and westbound traffic. No access was to be permitted to or from these through roadways except at certain designated points. Frontage roads were to be constructed and these will run parallel to the through roadways. The frontage road in front of defendants' property will be a one-way road going west, the grade of which will be from one to approximately two and one-half feet above defendants' property. Defendants will have ready access to this frontage road.

Entrance to the through roadways will be effected by means of traffic interchanges. In so far as the defendants' property is concerned the nearest interchanges are at the intersections of Craycroft Road 170 feet westerly of their property and Wilmont Road approximately one mile easterly of their property. Both of these roads will remain at their present grade and the through roadways will bridge over them. At Craycroft Road the grade of the through roadways will be raised approximately 21 or 22 feet above the grade of Craycroft Road. In front of the defendants' property the grade of the westbound through roadway will be raised approximately 20 feet above the westbound frontage road. The change of grade of the through roadways will lie within the right of way of the Tucson-Benson Highway as it existed prior to the commencement of this condemnation action. Motorists desiring to leave or enter the through roadway will do so by one-way ramps.

After construction of the controlled-access highway is completed a westbound traveler on the Tucson-Benson Highway would reach defendants' property by leaving the westbound through roadway approximately 1,400 or 1,500 feet east of Craycroft Road and driving on the ramp to the frontage road which serves the defendants' property. An eastbound traveler on the eastbound through roadway would have to drive approximately one mile easterly from the intersection of Craycroft Road with the Tucson-Benson Highway. He would cross over to the westbound through roadway and then proceed westerly to the previously mentioned ramp which would enable him to drive onto the frontage road serving the defendants' property.

A traveler leaving the defendants' property and desiring to continue to Tucson would enter the frontage road and drive westerly past the intersection of the frontage road with Craycroft Road approximately 1,700 feet until he entered a ramp leading onto the westbound through roadway. If the traveler desired to travel east toward Benson he would leave defendants' property by driving onto the frontage road and would proceed 250 or 300 feet westerly to Craycroft Road. He would then drive on Craycroft Road under the through roadways to the eastbound frontage road. He would then drive easterly on the eastbound frontage road approximately 1,400 or 1,500 feet until he reached the ramp by which he would enter the eastbound through roadway. A barrier fence is to be constructed between the westbound frontage road and the through roadway.

In order to construct the frontage road on the north side of the highway it was necessary to acquire .24 acres of defendants' property. The State therefore condemned an irregularly-shaped strip of land averaging approximately 54 feet in depth across the south boundary of defendants' property.

The only issues before the lower court were the amounts due defendants for the portion of the premises and the improvements thereon taken and the severance damage to the remaining property, and the impairment of access to the new highway. The court awarded $18,500 damages for the property taken by the State and $10,750 for damages to the remaining property. As to the $10,750 figure which represents damages to the remaining property the trial court had this to say:

'The court feels that the principal question to be decided in this case is whether or not the defendant-owners are entitled to damages for impairment of access, or, is impairment of access compensable. If such is not the case the court finds that the defendants' damages are in the sum of $18,500.00, but the court feels, after careful reading of the briefs, an impairment of access is compensable, and Defendants are damaged in the sum of $29,250.00'.

In its appeal the State does not question the award of $18,500 for the property actually taken, but asserts that the trial court erred in awarding defendants damages in the sum of $10,750 for injury caused by an impairment of access for the following reasons: (1) the evidence did not establish that there had been an impairment of access, (2) under the evidence the defendants enjoy the same access to the Tucson-Benson Highway after the taking which they have always enjoyed, (3) the changing of grade of an existing highway does not constitute such an impairment of access as to entitle an abutting property owner to damages, (4) the control of access to a controlled-access highway does not constitute a taking or damaging of property which would entitle abutting property owners to compensation.

There is unquestionably evidence in the record to support the finding made by the trial court that the access from the...