State ex rel. Sullivan v. Carrow, Civil 4242

• Decision Date: 23 June 1941
• Docket Number: Civil 4242
• Citation: 114 P.2d 896,57 Ariz. 434
• Parties: STATE OF ARIZONA, ex Rel. JOHN L. SULLIVAN, Attorney General, Appellant, v. EDWARD M. CARROW and EDITH M. CARROW, His Wife; THE FEDERAL LAND BANK OF BERKELEY, CALIFORNIA; THE WESTERN BUILDING AND LOAN ASSOCIATION; WETA IVY CARROW, as Administratrix of the Estate of JOSEPH E. CARROW, Deceased, and JOHN DOE and JANE ROE, Appellees
• Court: Arizona Supreme Court

114 P.2d 896

57 Ariz. 434

STATE OF ARIZONA, ex Rel. JOHN L. SULLIVAN, Attorney General, Appellant, v. EDWARD M. CARROW and EDITH M. CARROW, His Wife; THE FEDERAL LAND BANK OF BERKELEY, CALIFORNIA; THE WESTERN BUILDING AND LOAN ASSOCIATION; WETA IVY CARROW, as Administratrix of the Estate of JOSEPH E. CARROW, Deceased, and JOHN DOE and JANE ROE, Appellees

Civil No. 4242

Supreme Court of Arizona

June 23, 1941

APPEAL from a judgment of the Superior Court of the County of Mohave. J. W. Faulkner, Judge. Judgment reversed and cause remanded with instructions.

Mr. Joe Conway, Attorney General, Mr. A. R. Lynch, Assistant Attorney General, Mr. B. J. Choisser, Associate Counsel, and Mr. Frank X. Gordon, for Appellant.

Mr Harlow H. Akers, Mr. John W. Murphy and Mr. Carl G. Krook for Appellees.

OPINION

LOCKWOOD, C.J.

State of Arizona, plaintiff, brought suit to condemn for highway purposes certain land belonging to Edward M. Carrow and Edith M. Carrow, his wife, defendants. Judgment was rendered fixing the damages for the condemnation, and from such judgment this appeal was taken.

The facts material to a determination of the case may be stated as follows: The home of defendants is located on the west half of section 26 and east half of section 27, township 24 north, range 13 west. At some time prior to 1936 the state highway department constructed transcontinental highway No 66 through the lands above described. At the time of the original construction the state highway commission informed defendants where this highway was to be located, and the latter then said if given positive assurance that it would be so located they would construct extensive improvements adjoining it for the accommodation of the traveling public. The commission assured defendants that such road location would be made and retained permanently, and that it was the desire of the commission that these improvements be made, whereupon defendants did establish a tourist camp and recreation area for the benefit of the traveling public. At some time in 1936 the commission relocated a certain portion of the highway. This new highway departed from the course of the old highway, aforesaid some 400 feet to the east of defendants' recreation area as aforesaid and passed to the rear of and above it and again connected with the old highway about 900 feet to the west. The effect of this relocation was to divert the main traffic over highway 66 away from the place where defendants had their recreation area, and thus to greatly diminish the business which came to them by reason of such traffic, although the old highway remained open and usable.

It is admitted by defendants that the state highway department has the right to relocate and realign state highways, and, if necessary, to take any lands which are required for such purpose, but it is insisted, and not disputed by plaintiff, that reasonable compensation for the damage done to defendants, either by the actual taking of the land or by damage to a larger parcel of land of which the land taken is a part must be paid to the latter. The only question before us is whether the court properly adjudicated these damages.

Defendants claimed that the elements of damage were threefold. First, the value of the land taken; second, damage to the adjoining land not taken because of the increased difficulty of access to their recreation area caused by the location of the new highway; and, third, the flooding of their recreation area which they claimed was caused by the casting upon such area of an unusual amount of drainage caused by the construction of the highway in question, and by the partial blocking of a canyon or dry wash which ran near the premises, so that in times of heavy rain this blocking would cause the area to be flooded.

The trial court found that the value of the land taken was $3,500; that the loss of convenient access to the buildings, and improper drainage, caused damage to the extent of $1,950, and that the obstruction of the dry wash caused damage to the extent of $3,000 to the land not taken. We consider these respective elements of damage.

The first question is whether the trial court could take into consideration the depreciation in the value of defendants' investment in their recreation area, caused by the loss of business due to the diversion of the route of the through highway. This is a situation which arises very frequently in the construction of highways, and particularly so in the west, where the original highways were constructed with the element of cost the chief consideration, and later were realigned to form a costlier but more convenient road for the traveling public. With the increased power and speed of automobiles, curves and grades which were of very little moment to the horse and buggy, or even to early motor cars, became not only inconveniences but positive menaces to safety. The highway departments all over the country have continually, therefore, relocated routes for the purpose of eliminating curves and grades so far as possible. In many instances, various structures, such as auto camps, refreshment stands and the like have been erected alongside of highways, and then through a later realignment have been left high and dry and practically worthless as business propositions, for it is a notorious fact that through traffic will not turn out from a main highway to patronize such establishments even a short distance away. It has frequently happened that the relocation of a highway has practically destroyed the value of an investment of many thousand dollars. The question then is, may the highway department, after business investments have been made in reliance upon a certain location of the highway, or even an indication or promise by the department that the highway would not be altered, change its location for the convenience of the traveling public, and if it may do so, must the state pay, not only for the value of the land taken, but for the loss of property values due to the destruction of the business previously maintained.

So far as the right to change the location is concerned, we think there can be no question that when the commission, acting in a reasonable exercise of the discretion conferred upon it determines that it is in the best interests of the public that the route of a highway be changed, it may do so, notwithstanding that the effect of such change is to seriously damage or destroy the value of property along the old line. The right to use such discretion cannot be surrendered by any state officers, and no promise or agreement by any of them can create a vested right in the holder of adjoining property that the main route shall continue to exist as promised. Board of Commissioners v. Oklahoma State Highway Comm., 163 Okl. 207, 23 P.2d 681, 91 A.L.R. 235. Nor do defendants seriously contend that such promises are legally binding. They claim, however, that if the commission does choose to exercise this right, in determining the damage caused thereby to the property taken or injured...