Suffield v. State ex rel. Morrison
| Decision Date | 10 October 1962 |
| Docket Number | No. 6845,6845 |
| Citation | 375 P.2d 263,92 Ariz. 152 |
| Parties | Charles M. SUFFIELD and Viola M. Suffield, husband and wife, Appellants, v. The STATE of Arizona, ex rel. Robert MORRISON, Attorney General, Appellee. |
| Court | Arizona Supreme Court |
Moore, Vlahovich & Greenwood, Bisbee, for appellants.
Wade Church, former Atty. Gen., Robert W. Pickrell, Atty. Gen., Phoenix, Ralph L. Fenderson Jr., former Asst. Atty. Gen., Scottsdale, for appellee.
This is an appeal by the defendants, Charles M. Suffield and Viola M. Suffield, his wife, from a judgment in a condemnation suit wherein the defendants claim the damages awarded to them for land taken by the State were inadequate.
The facts are as follows: Defendants owned the Union Patented Lode Mining Claim in Cochies County, Arizona, lying athwart Mule Pass, the only natural access way to Bisbee over U. S. Highway 80, between Tombstone and Bisbee, Arizona. The defendants acquired their mining claim in 1939 and have lived there since that date. From time to time they made certain improvements on the land. A well was dug during 1939 and 1940 and water was developed. Later defendants constructed a restaurant building which they operated from 1943 to 1952 when it was closed due to illness and death in defendants' family. In 1948 a concrete and brick residence dwelling was constructed. Both the residence and the restaurant received their main water supply from the well and various pipe lines and storage tanks installed by defendants. This water supply gave the defendants an almost complete independence from outside sources of water for both domestic and commercial uses for a period of approximately fifteen (15) years, from 1940 of the fall of 1955.
On April 29, 1955, the State of Arizona brought action against defendants to condemn a strip of land comprising 3.43 acres (by trial amendment increased to approximately 4.84 acres) across a portion of the said mining claim for the purpose of constructing thereon the Mule Pass Tunnel on U. S. Highway No. 80. That same year a pilot tunnel was driven by the State under Mule Pass, through the parcel of land to be condemned. After this time except for unappreciable quantities (approximately twenty-four gallons of water per day) the defendants' well failed to produce water, and water began flowing from the pilot tunnel, which flow was continuing at the time of the trial. The pilot tunnel had intervened between the water supply that formerly collected in a fault area running from the mountains to the south toward defendants' well to the north. Prior to the drilling of the tunnel the water had percolated through secondary faults moving from the south to defendants' well. By construction of the tunnel the bottom of the water table had been tapped and the water ran out through the tunnel which was on the land taken.
The case was submitted to th jury to determine compensation to which defendants were entitled as measured by 1) the value of the land taken by the appellee, and 2) the damage to the remainder of defendants' property by reason of the severance therefrom of the land taken. The jury fixed the value of the land taken at $480.00 and the severance damage at $1741.00.
The defendants' first assignment of error is that the trial court refused to admit into evidence defendants' exhibit H, consisting of United States and Arizona Partnership Returns of Income for the years 1943 to 1952 inclusive for the restaurant operated by the defendants and known as 'The Top Cafe.' This was offered of establish 'the adaptability of the property to a business use,' and the market value of the land. The exhibit was inadmissible as a means of establishing market value of the property. 1 Even if offered solely to show adaptability of the property to business use, it was not error to refuse to admit it, since there was other competent evidence to show adaptability to such use.
Defendants assign as error the giving of State's instructions Nos. 5 and 8, and failure to give defendants' proposed instructions Nos. 13 and 15, all going to the measure of damages. The basis of their claim with regards to Nos. 5 2 and 8 3 is that A.R.S. § 12-1122 provides for three separate elements of damage: (1) the value of the property condemned, (2) damages accuring to the remainder of the property not condemned by reason of the taking of the property condemned, and (3) damages due to the construction of the improvement (in this instance the highway) in the manner proposed by the state. The pertinent portions of this statute read:
'A. The * * * jury shall ascertain and assess:
'1. The value of the property sought to be condemned * * *.
'2. If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned, and the construction of the inprovement in the manner proposed by the plaintiff.
* * *
* * *
We find no merit in this contention. The statute plainly contemplates only two elements of damage: (1) The value of the property actually taken by condemnation, and (2) the lessening in value of the property remaining, as it may be affected by severing it from the property actually taken, and by the manner in which the proposed improvement may be constructed. This becomes more obvious in the light of the following paragraph 3 of Sub-section A, supra, which provides that if the jury thinks the improvement for which the land was condemned actually benefits the land severed to such an extent that it equals any lessening in value because a part of the whole was taken, then the owner is allowed only the first element, viz., the value of the portion of his property which is actually taken. The instructions complained of properly stated the law.
Defendants' requested instruction 13 4 was properly refused. It is a mere assertion that difficulties in removing mineral deposits from remaining land, after and because of the taking of the condemned portion, 'may properly be shown as a factor in assessing the damages.' This is an assertion of defendants' right to produce such evidence, but not a guide to the jury in...
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...for condemnation is filed, and the market value immediately after severance from the remaining portion. Suffield v. State ex rel. Morrison, 92 Ariz. 152, 375 P.2d 263 (1962); See also § 12--1123, A.R.S. ...
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