Taylor v. State ex rel. Herman
| Decision Date | 06 April 1970 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 467 P.2d 251,12 Ariz.App. 27 |
| Parties | Melvin R. TAYLOR and Lucille Taylor, husband and wife, Appellants, v. STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellee. 1076. |
| Court | Arizona Court of Appeals |
Donovan E. Speaker, Phoenix, for appellants.
Stevens & Leibow, by Howard, P. Leibow, Phoenix, for appellee.
This case involves the issue of whether or not the jury in a condemnation action should have been instructed as to special benefits.
The appellee, State of Arizona, instituted an action to condemn the subject property, located on both sides of Arizona Highway 84 approximately one and a half miles southeast of Gila Bend. In the 'before' situation, the property had frontage of 2,000.04 feet on the easterly side of Highway 84 and 2,600 feet on the westerly side. The 'taking' was required for construction of a portion of Interstate 8, a controlled access highway, running from Casa Grande to Yuma. As a result of the construction, two small triangles of land were taken on the southeasterly and southwesterly corners of the appellants' property, comprising a total acreage of 3.1 acres, and an interchange known as East Gila Bend Interchange was constructed which utilized the old Highway 84 as an access road to and from the freeway. In the 'after' situation both eastbound and westbound traffic on Interstate 8 could reach the subject property via the East Gila Bend Interchange. As a consequence of the construction, appellants' property abutting the interchange was restricted from access to old Highway 84 for a distance of 515 feet on the westerly side and 697 feet on the easterly side.
The State's two appraisers testified that the property would receive special benefits as a result of the condemnation because the creation of the interchange adjacent to it raised the highest and best use of the property, from that of speculative desert property to commercial purposes. The market value of the property was therefore enhanced. Both witnesses testified they had investigated the general freeway system in Arizona and discovered that sites adjacent to entrance and exit ramps leading to limited access highways were especially desirable. Such sites were particularly attractive to motel, filling station and truck stop operators because of the limited number of interchanges constructed in the system.
One of these witnesses testified that his investigation of the East Flagstaff Interchange showed that land selling in the 'before' situation from $1,000.00 an acre at the interchange site was selling from $75,000.00 to $100,000.00 for half-acre to three-fourths acre sites in the 'after' situation. Both witnesses testified that the Interstate 8 construction would specially benefit the subject property, which ran for a considerable distance on the highway, and also property belonging to a Mr. Holt which he had purchased as a Texaco filling station site from Mr. Taylor prior to the condemnation. The Holt property, according to them, would be specially benefited by the interchange although no part of it was being taken by the State. The appraisal witness for appellants testified that in his opinion there were no severance damages.
The case was tried to a jury which specifically found the damages for the property taken to be $950.00 and severance damages to be $28,600.00. It specifically found the property specially benefited in the sum of $25,100.00 which it substracted from the severance damages and therefore arrived at the total sum of $3,500.00.
Appellants contend that the evidence showed the benefits to be general and not special, hence it was improper to instruct the jury as to special benefits.
Art. 2, § 17 of the Constitution of Arizona, A.R.S., provides in part:
'* * * No private property shall be taken or damaged for public or private use without just compensation having first been made, or paid into court for the owner, and no right of way shall be appropriated to the use of any corporation other than municipal, until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation * * *.'
Pursuant to this constitutional provision, the legislature passed A.R.S. § 12--1122, subsec. A which states that the fact-finder shall ascertain and assess:
Although this statute does not distinguish between special and general benefits, the general rule, followed in Arizona, is that only special benefits may be deducted from severance damages. Phoenix Title and Trust Co. v. State ex rel. Herman, 5 Ariz.App. 246, 425 P.2d 434 (1967).
The most satisfactory distinction between general and special benefits is that general benefits are those which arise from the fulfillment of the public object which justified the taking while special benefits are those which arise from the peculiar relation of the land in question to the public improvement. Nichols on Eminent Domain § 8.6203 at 66 (3rd ed.).
There is probably more judicial discord as to what is or is not a special benefit than in any other area of the law of eminent domain. Where there is an actual physical improvement to the property, such as the draining of a swamp, it is easy to see a special benefit. It is equally easy to recognize, at the other end of the spectrum, a general benefit such as an improved system of highways, since everybody in a community benefits from such improvement. The difficulty lies in the amorphous grey area between these two extremes. We believe that the following benefits are 'special' benefits, therefore, offsetable:
1) The unique benefit--a benefit not shared by any other parcel, 1 and
2) The special benefit--a benefit which may be shared by other parcels along the roadway similarly situated. 2
We would classify as non-offsetable or 'general' benefits the following:
1) The local or neighborhood benefit--a benefit shared with other parcels not abutting the road but in the near vicinity, 3 and
2) The general or community benefit--a benefit shared with other parcels in the community arising from the fullillment of the public object which justified the taking. Phoenix Title and Trust Co. v. State, supra.
Appellants argue that since the Holt property, no part of which was taken by the highway construction, will be benefited by the interchange, the benefit is no longer 'special' but 'general.' Their authority for this contention is the case of Phoenix Title and Trust Co. v. State, supra. In Phoenix Title and Trust Co. v. State, supra, the court believed that the testimony as to benefits indicated a general benefit since all property owned in the locality or city, whether they abutted the improvement or not, would benefit in the manner testified to by the witness.
To support their position that a benefit is not offsetable if it is enjoyed by others whose property is not taken, the appellants quote from Phoenix Title and Trust Co. v. State, supra, which quotes from State ex rel. State Highway Commission v. McCann, 248 S.W.2d 17 (Mo.App.1952) at 22:
'A 'General benefit,' as applied to a person whose property is being condemned for a highway, is one common (though it may be in a greater or lesser degree) to all other landowners in the vicinity of such road, including those whose land is not taken as well as those whose land is partly taken. * * *'
This quote is from the case of State ex rel. State Highway Commission v. McCann supra, a 1952 decision of the Missouri Supreme Court. Thirteen years later, however, in State ex rel. State Highway Commission v. Vorhof-Duenke Co., supra, the Missouri Supreme Court in its opinion quoted from Randolph Eminent Domain § 270 at 251:
...
To continue reading
Request your trial
-
Defnet Land & Inv. Co. v. State ex rel. Herman
... ... EVIDENCE OF SPECIAL BENEFITS ... It is defendants' position that no special benefits can arise as a result of proximity to an interchange on a controlled access highway ... While the briefs were being prepared in this case, this court decided the case of Taylor v. State ex rel. Herman, 12 Ariz.App. 27, 467 P.2d 251 (1970). In that case we stated what types of benefits could be offset against severance damages and defined general and special benefits. We also held that proximity to an interchange can result in a special benefit. We further ruled that ... ...
-
Pima County v. Gonzalez
...that have the ability to connect to it because of geographical proximity such as the Gonzalezes. See Taylor v. State ex rel. Herman, 12 Ariz.App. 27, 30, 467 P.2d 251, 254 (1970) (general benefit is "a benefit shared with other parcels in the community arising from the fulfillment of the pu......
-
City of Tucson v. Rickles, 2
... ... also holds his property subject to the taxation power of the state. Although in the case of Moschetti v. City of Tucson, supra, the court ... v. State ex rel. Herman, 103 Ariz. 388, 442 P.2d 835 (1968): ... 'Ordinarily, we would not ... to what are or what are not special benefits, see our decision in Taylor v ... ...