State v. Jacobs

• Decision Date: 24 April 1968
• Docket Number: CA-CIV,No. 1,1
• Citation: 7 Ariz.App. 396,440 P.2d 32
• Parties: STATE of Arizona ex rel. Justin HERMAN, Director Arizona Highway Department, Appellant, v. Charles H. JACOBS and Loretta Jacobs, husband and wife, as joint tenants with right of survivorship, Appellees. 371.
• Court: Arizona Court of Appeals

Page 32

440 P.2d 32

7 Ariz.App. 396

STATE of Arizona ex rel. Justin HERMAN, Director Arizona Highway Department, Appellant, v. Charles H. JACOBS and Loretta Jacobs, husband and wife, as joint tenants with right of survivorship, Appellees.

No. 1 CA-CIV 371.

Court of Appeals of Arizona.

April 24, 1968.

Rehearing Denied May 24, 1968.

Review Denied July 12, 1968.

Darrell F. Smith, Atty. Gen., by Guy Axline, Sp. Asst. Atty. Gen., for appellant.

Earl Platt, St. Johns, for appellees.

STEVENS, Judge.

The State (appellant), instituted this action to condemn any right of direct access between Jocobs' (appellees) lands and the main traveled portions of Interstate 40, a new highway constructed upon the old right-of-way. The matter went to trial before a jury to determine the amount of damage, if any, sustained by appellees by reason of their loss or impairment of access to Interstate 40.

Two maps have been inserted in this opinion to illustrate the fact situation which is as follows: On 9 February 1964, the date of issuance of summons in this action, the appellees owned approximately 150 acres of land. 767 feet of this land abutted the northwesterly side of U.S. Highway 66, approximately 2 miles west of Chambers, Arizona, and approximately 9 miles east of Navajo, Arizona. On their frontage property, the appellees conducted a roadside business consisting primarily of the sale of petrified wood. On the upper part of their land, the appellees maintained their residence and several other buildings rented to their business employees.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Before this action was commenced, the appellees had access to their abutting lands by way of Highway 66. The public, whether traveling easterly or westerly, was free to turn directly off Highway 66 to the appellees' roadside business. After construction, the paved portion of Highway 66 became the westbound lane of Interstate 40, a four-lane controlled access, divided highway, and the eastbound land was constructed over new right-of-way purchased from other persons alongside of Highway 66, opposite the appellees' land. A fence to control access to the through-lanes of Interstate 40 was erected inside the former right-of-way of Highway 66, fifty-eight feet south of and parallel to the south boundary of the appellees' property. Inside this fifty-eight foot portion of the highway, a paved, two-way frontage road was constructed which provided access to the through-lanes of Interstate 40 at McCarrell Interchange 7,300 feet west of the appellees' property. this frontage road is not a through frontage road. It ends at the east side of what was formerly appellees' highway frontage. The State has taken no actual property of the appellees but has rather cutoff the appellees direct access of ingress and egress to Interstate 40 from their abutting property.

During the trial, testimony was given as to the value of the appellees' property, including the improvements thereon, both before and after the impairment of the right to ingress and egress. The appellees' appraiser, Gene R. Brownell, testified that appellees' property, as enhanced by the improvements thereon, had a fair market value, before the condemnation of appellees' easement of ingress and egress to their property, in the sum of $47,160. His figures were based on a highest and best use of 2 3/4 acres as commercial frontage area, the highest and best use of the remainder being for grazing purposes. He further testified that the highest and best use of the land after the condemnation was strictly for grazing purposes and that the value of the property after the condemnation was $15,592. In his opinion, the just compensation due appellees was the difference in before and after value which amounted to $31,568.

Appellant's appraiser, Billy Gene Neal, stated that the fair market value of appellees' property in the before situation, as enhanced by the improvements thereon, was $43,100. He testified that this figure was based on a highest and best use of three acres as commercial property, the remainder having a highest and best use as land for investment purposes. His estimate of fair market value as to the after situation was $26,700 leaving a decrease in value as between the before and after situation of $16,400. His opinion of highest and best use in the after situation was that all of the land was best suited for use as strictly investment land.

One of the appellees, Charles Jacobs, testified as an owner that in his opinion the fair market value, as enhanced by improvements thereon, before the taking was $53,714, and that its after value was $14,864, giving a just compensation figure of $38,850. He had valued the property in the before situation as five acres for commercial purposes, five acres for residential purposes, and the remainder as grazing land. He valued the property in the after situation as strictly grazing land.

On this evidence, the jury determined that the appellees had sustained damages in the amount of $21,000.

The State contends that the appellees were not entitled to compensation in any amount because there was no actual physical invasion of the appellees' property. In support of this contention, the State cites Rutledge v. State, 100 Ariz. 174, 412 P.2d 467 (1966). We deem it necessary to dispose of this contention first for if the State is correct, then there will be no necessity to proceed further. There is language in the Rutledge case which when taken out of context, would seem to support the contention of the State. However, in Rutledge the court was primarily concerned with interpretation of a statute of limitations and held that the cause of action in that case was barred by a two-year statute of limitations. The fact situation in the present case sufficiently distinguishes it from Rutledge and makes Rutledge inapplicable.

We deem the present case to be controlled by the principles set forth in State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 350 P.2d 988 (1960), and State v. Wilson, Ariz., 438 P.2d 760, (filed 13 March 1968).

In Thelberg, our Supreme Court stated at page 324 of 87 Ariz., page 991 of 350 P.2d:

'An examination of many authorities from various jurisdictions convinces us that the weight of authority in the United States is to the effect that either the destruction or the material impairment of the access easement of an abutting property owner to such highway is compensable. * * * It follows that the State can neither take nor damage said easement of ingress or egress of an abutting property owner without just compensation.'

In the Wilson case, our Supreme Court defined the right of access as follows:

'Access may be defined as the right vested in the owner of land which adjoins a road or other highway to go and return from his own land to the road or highway without obstruction. (citing case) Such a right, to be of any substantial utility, must necessarily include the owner's invitees and licensees.'

In both Thelberg and Wilson there was an actual physical taking of property. However, we do not deem this difference in facts between those cases and the case with which we are presently concerned to be a material difference. In the present case, there has been an obstruction of the appellees' right of direct access to Interstate 40 and they have been relegated to a circuitous route which has materially impaired their right of access to the highway. We do not believe that our Supreme Court meant, by the decision in Rutledge, to make the right to damages for loss of access wholly contingent on the fortuity that there be an actual physical taking of property, no matter how large or small in amount. In the case with which we are presently concerned, the loss to the property owners by taking their right to direct access is not mitigated in the least by the fact that there was no physical taking of any of their tangible fee property. For the reasons stated above, we hold that there has been a compensable taking of a property right in the situation now before us.

In Thelberg, our Supreme Court stated at page 325 of 87 Ariz., page 992 of 350 P.2d:

'When the controlled-access highway is constructed upon the right of way of the conventional highway and the owner's ingress and egress to abutting property has been destroyed or substantially impaired, he may recover damages therefor. * * * Other means of access such as frontage roads as in the instant case may be taken into consideration in determining the amount which would be just under the circumstances. (citing case) Other means of access may mitigate damages, (citing case) but does not constitute a defense to the action however. (citing case)

'The measure of damages for the destruction or impairment of access to the highway upon which the property of an owner abuts is the difference between the market value of the abutting property immediately before and immediately after the destruction or impairment thereof. The damages awarded the abutting...