Town of Williams v. Perrin

• Decision Date: 27 April 1950
• Docket Number: No. 5101,5101
• Citation: 217 P.2d 918,70 Ariz. 157
• Parties: TOWN OF WILLIAMS v. PERRIN et al.
• Court: Arizona Supreme Court

Page 918

217 P.2d 918

70 Ariz. 157

TOWN OF WILLIAMS v. PERRIN et al.

No. 5101.

Supreme Court of Arizona.

April 27, 1950.

Urban R. Miller, of Williams, for appellant.

H. K. Mangum and T. M. Flick, of Flagstaff, for appellees.

DE CONCINI, Justice.

Appellant, Town of Williams, brought an action in eminent domain against appellees to condemn certain of the latter's property needed in connection with a program of water works improvement. Appellant sought to condemn a right-of-way for a pipe line, being 25 feet in width by 5452 feet in length and covering an area of approximately 2.86 acres. Appellant further sought to condemn 40,019.21 cubic yards of clay, sand and gravel from a 10 acre tract to be used in constructing a reservoir. The excavation resulting from the taking thereof covered only an area of 6.81 acres, however, the tract of land owned by appellees and from which the material was taken amounted to at least 40 acres. In connection with the taking of the materials, appellant further sought to condemn a temporary roadway over the remainder of that 40 acre tract, amounting to .34 acre in area, leading from the 'borrow pit' to the reservoir site. The cause was tried to a jury which awarded appellees $150.00 for the right-of-way, $4,001.92 for the removal of the construction materials and $250.00 for the temporary roadway, $100.00 of which defendant remitted by order of the trial court.

Appellant in its briefs makes eleven assignments of error and seven propositions of law. We will concern ourselves only with those necessary to dispose of this appeal.

Our first consideration is directed to a determination of the correctioness of the award of $150.00 as compensation for the taking of the right-of-way over appellees' land and the award of $150.00 compensation for temporary use of appellees' land as a roadway from the 'borrow pit' to the reservoir site. Appellees introduced no evidence as to the amount of compensation to which they were entitled as a result of the taking of these two items.

It is a fundamental and well-established rule of law that the burden of proof as to the amount of damages in condemnation proceedings is upon the property owner. The only evidence as to the amount of damages appellees suffered from the taking of the right-of-way was introduced by the appellant. Under this proof, the damages for the taking of the right-of-way amounted to $114.20. Consequently, the award must be reduced to that amount. Since there is no evidence as to the amount of damages which the taking of the right-of-way caused to the remainder, we cannot assume that any such damages exist.

The same situation exists as to proof of damages for the temporary use of appellees' land as a roadway from the 'borrow pit' to the reservoir. Under the only evidence introduced, that of appellant, the award must be reduced to the sum of $6.80.

A further question raised by the appellant in connection with the above items, is, did the trial court err in refusing to allow appellees' tenant to testify as to what benefit the water line would be to him? If such refusal were error, it is not prejudicial because the appellant has prevailed in this appeal upon the issue of measure of damages for the taking of the right-of-way. The refusal to allow the testimony was not error, though, because there was no evidence that the appellees would have the right to make use of the water therefrom. Moreover, since no evidence was introduced as to any damages which the pipe line had caused to the rest of appellees' land, the issue of benefit to the remaining land was immaterial, since under section 27-915(3), A.C.A.1939, where only a part of a tract is taken for a public use, the benefits accruing to the residue may only be set off against the damages thereot and not as against the value of the part taken. Under the circumstances, the trial court was therefore correct in excluding evidence of benefit to the remaining land of appellees.

The appellant also claims that the amount awarded to appellees for the taking of earth from their land for use in the construction of the reservoir, in the sum of $4,001.92, was excessive. Its line of reasoning is that the area of the excavation resulting from the removal of the materials therefrom amounted to 6.81 acres; that by appellees' witnesses the greatest valuation given to the land was $400.00 per acre, therefor the largest sum to which appellees are entitled would be $2,724.00.

This proposition as applied to these facts is completely without merit. Appellant's authorities cited in support thereof do not uphold its position. Furthermore, a municipality may condemn only what is actually needed for the public use. 14 A.L.R.Ann. 1350; 68 A.L.R.A.nn. 837. Appellant did not seek to condemn the fee but only the materials taken from a ten acre tract. It is only consonant with common sense that an excavation of 40,000 cubic yards of earth from 6.81 acres in a square ten acre tract would leave much to be desired in the value of the remaining 3.19 acres, to say nothing of what other damages might have resulted to the value of the remaining 30 acres of the original 40 acre tract. If we were to adopt appellant's contention limiting damages solely to the value of the fee actually disturbed by the excavation, it would result in undue hardship on appellees because the question of damages to the remaining land not touched by the taking would not be considered nor submitted to the jury as provided for in section 27-915, A.C.A.1939.

The appellant further argues that the amount allowed as damages for the taking of the materials is erroneous because it is apparent that the jury arrived at this figure on the basis of testimony as to the cubic yard value of the earthen materials taken. The record reveals that this is the situation here. The jury awarded appellees the sum of $4,001.92 on the basis of the removal of 40,019.21 cubic yards of earth. One of appellees' witnesses testified that the market value of the material taken was 10cents per cubic yard, another said 15cents per cubic yard. Thus it appears that the jury's measure of damages was based on a 10cents per cubic yard valuation.

Furthermore because of the manner in which the issue of damages was presented to and determined by the jury, and in view of the instructions submitted by both parties, the verdict in the sum of $4,001.92 will be permitted to stand. Reinhardt v. Doyle, 39 Ariz. 318, 6 P.2d 428. The appellant itself requested an instruction by which the jury was directed to measure the damages to appellees according to the market value of the earthen materials removed. Appellant cannot now complain of the fact that the jury followed instructions asked by it and given by the court. Schell v. F. E. Ransom Coal & Grain Co., Mo.App., 79 S.W.2d 543. A party may not complain of instructions given at his request and is bound by the theory of his own instructions. Wilkenson v. Phoenix R. Co. of Arizona, 28 Ariz. 216, 236 P. 704.

Counsel for appellant devotes nearly one-half of its briefs and oral argument to a criticism of the rule of evidence laid down in the case of Viliborghi v. Prescott School District No. 1 and, the case of City of Los Angeles v. Deacon, hereinafter cited. We agree with counsel and feel we should not follow that rule in the future. However, appellant has not been prejudiced herein by the...