State v. Dart

• Decision Date: 10 December 1921
• Docket Number: Civil 1844
• Citation: 23 Ariz. 145,202 P. 237
• Parties: STATE, Appellant, v. MATTIE A. DART, Appellee
• Court: Arizona Supreme Court

202 P. 237

23 Ariz. 145

STATE, Appellant, v. MATTIE A. DART, Appellee

Civil No. 1844

Supreme Court of Arizona

December 10, 1921

APPEAL from a judgment of the Superior Court of the County of Pinal. O. J. Baughn, Judge. Reversed.

Mr. W J. Galbraith, Attorney General, and Mr. George R. Hill and Mr. Wm. A. Harkins, Assistant Attorneys General, for Appellant.

Messrs Bullard & Jacobs and Messrs. Armstrong, Lewis & Kramer, for Appellee.

OPINION

FLANIGAN, J.

This is an appeal by the state of Arizona from a judgment recovered by appellee (hereinafter referred to as plaintiff) in an action to recover the damages sustained by her because of an alleged negligent diversion of the waters of the Gila River, whereby a flood which occurred in January, 1916 inundated her lands and partly washed them away and destroyed improvements thereon. For such damages the plaintiff, in accordance with the provisions of section 6, chapter 80 (Laws Regular Session 1912), presented to the state auditor a verified, itemized claim, which claim was refused and disallowed by such officer.

The complaint alleges that the damages sustained were the result of the negligent and unskillful construction, location, and maintenance of the State Highway Bridge, near Florence, and that such negligent acts and omissions, exclusive of all other causes, brought about the injuries to plaintiff's lands and improvements.

There was evidence for plaintiff to show that she was the owner of forty acres of land, with the improvements, situated about a mile and a half below the bridge, on the south bank of the river; that she was farming these lands for agricultural and horticultural crops; that during a flood of the Gila River, which occurred in 1915, the north approach of the bridge was washed out, and that afterwards and before the flood of 1916 the part of the north approach carried away by the flood of 1915 was filled up solid with earth by the officers and agents of the state, so that when the 1916 flood occurred the waters of the river were deflected, by reason of such solid embankment, around the south end of the bridge and on to plaintiff's land. According to the testimony of one of plaintiff's witnesses, the waters thus diverted by the fill, after escaping around the south end of the bridge, went back into the main channel of the river, and, "swinging from side to side of the river, impinged on both banks," and thus reached plaintiff's lands, on a course from the north bank. While it is charged that negligence existed in the failure to cut the south approach, which, according to the testimony was washed away by the 1916 flood, the plaintiff in this court seems to rely entirely on the alleged negligence of the state in filling the gap made in 1915 in the north approach, it being claimed that this work caused the diversion of the flood which did the damage to plaintiff's property. The bridge itself, of course, was, and the failure to cut the south approach may have been, factors contributing to the result, but, as the jury may have believed that but for the filling of the north approach the waters would have passed away without harm to plaintiff, we consider the case on the theory presented, premising that any causal relation which the failure to cut the south approach may have had is governed by the rules announced. There was no testimony adduced to show that the land had been theretofore flooded, and for aught that appears it may never again be flooded. As above noted, the plaintiff recovered in the lower court upon a complaint alleging that the injury to her property was occasioned by the negligent acts and omissions of the state. In this court, however, a different theory is adopted; it being now claimed that the action is based on the constitutional provision that --

"No private property shall be taken . . . for public or private use without just compensation having been first made, or paid into court for the owner." Section 17, art. 2.

And in this connection it is urged that the words "negligent" and "unskillful," used to characterize the acts or omissions of the state, may be disregarded as surplusage, because the state is liable for the acts complained of, without regard to whether the work was done negligently or unskillfully.

It is said also that the action is for damages caused by the state of Arizona, and not by the territory of Arizona; it being conceded that the construction and maintenance of the bridge and approaches by the territory in 1909-1910 gives rise to no cause of action against the state, but asserted rather that the state's own acts caused the injury. The contention is, in short, that the filling of the north approach, and the consequent injury to plaintiff's property, was a taking or damaging for which she should be compensated under our constitutional provisions with reference to the exercise of the power of eminent domain, "upon the principle that the government by the very act of taking impliedly has promised to make compensation" in accordance with the dictates of justice and the terms of the Constitution. Plaintiff's contentions under this head are based largely upon the authority of the following cases, viz.: Tyler v. Tehama Co., 109 Cal. 618, 42 P. 240; Reardon v. City and County of San Francisco, 66 Cal. 492, 56 Am. Rep. 109, 6 P. 317; Board of Commissioners, etc., v. Adler, 69 Colo. 290, 194 P. 621; United States v. Lynah, 188 U.S. 445, 47 L.Ed. 539, 23 S.Ct. 349 (see, also, Rose's U.S. Notes); Chicago v. Taylor, 125 U.S. 161, 31 L.Ed. 638, 8 S.Ct. 820; Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L.Ed. 557; and United States v. Cress, 243 U.S. 316, 61 L.Ed. 746, 37 S.Ct. 380 -- which hold generally that liability exists to compensate the land owner whose property is taken or damaged for public use, "when he is consequentially injured by the work done, whether it is done carefully and with skill, or not" (Reardon v. City and County of San Francisco, supra), from which plaintiff deduces that liability exists in the case at bar upon the implied contract resulting from our constitutional provision concerning the exercise of the power of eminent domain to compensate her for the consequential damage to her property.

These cases hold that the condemnor is liable to make compensation for property taken or damaged in the exercise of the power of eminent domain, and are instances of assessments of damages made after the appropriation was actually completed. But in all of them it appears that the taking or damage for which compensation was required to be made was the necessary result of the appropriation as made, being more or less inseparably connected with it, and that the taking or damage was of a permanent character. The fact that the works may have been in some respects negligently constructed was not supposed, however, in the instances where negligence was charged or shown, to affect the rights of the parties, for the reasons, doubtless, that the land owner was just as much hurt by an appropriation so characterized as he would be by acts free from negligence, and because the condemnor would not be permitted to defend by pleading his own wrong. These decisions do not directly answer what we take to be the dominant inquiry in this case, which is: Was the negligent act of the state in filling the north approach in itself an act of appropriation under the power of eminent domain, or so connected with such an act as to impose liability upon the state to pay just compensation for the damages resulting therefrom?

We think the general rules enunciated by the authorities concerning the elements of damages in cases where the damages are assessed before, and where they are assessed after, the appropriation, may profitably be noted. The authorities are unanimous to the effect that when the damages are assessed before the taking, nothing can be included for wrongful or negligent acts upon the theory that they may occur, but the damages are limited to such as necessarily arise from a lawful taking and a proper construction and operation of the improvement. Lewis on Eminent Domain, 3d ed., § 714; Norfolk & W.R. Co. v. Carter, 91 Va. 587, 22 S.E. 517-519; Cleveland, C.,C. & St. L. Ry. Co. v. Smith, 177 Ind. 524, 97 N.E. 164-172; Utah Lake Irr. Co. v. Jensen, 49 Utah 19, 161 P. 677; Denniston v. Philadelphia Co., 161 Pa. 41, 28 A. 1007; Richardson v. Centerville, 137 Iowa 253, 114 N.W. 1071; Pittsburg etc. Ry. v. Gilleland, 56 Pa. 445, 94 Am. Dec. 98; Hord v. Holston River R. Co., 122 Tenn. 399, 19 Ann. Cas. 331, 135 Am. St. Rep. 878, 123 S.W. 637.

The reason for the rule is that damages cannot be allowed for an injury which the law presumes will not be inflicted. No compensation based on such a presumption of negligence or...