Tucson Elec. Power Co. v. Adams, 2

• Court: Arizona Court of Appeals
• Writing for the Court: BIRDSALL; HOWARD, C.J., and HATHAWAY
• Citation: Tucson Elec. Power Co. v. Adams, 656 P.2d 1257, 134 Ariz. 396 (Ariz. App. 1982)
• Decision Date: 20 October 1982
• Docket Number: CA-CIV,No. 2,2
• Parties: TUCSON ELECTRIC POWER COMPANY, an Arizona corporation, Plaintiff/Appellee, v. Eugene J. ADAMS, III, and Suzanne S. Adams, husband and wife; John R. Ferrell and Carol M. Ferrell, husband and wife; J. Michael Fromm and Georgene Fromm, husband and wife; George M. Griswold and Jean M. Griswold, husband and wife; John D. Schannep and Helen H. Schannep, husband and wife; Margery Bush, wife of Frank Bush; Robert R. Elkins and Corrine D. Elkins, husband and wife; Jean C. Baker, an unmarried woman; and Kingston J. Smallhouse and Dorothy J. Smallhouse, husband and wife, Defendants/Appellants. 4186.

Page 1257

656 P.2d 1257

134 Ariz. 396

TUCSON ELECTRIC POWER COMPANY, an Arizona corporation, Plaintiff/Appellee, v. Eugene J. ADAMS, III, and Suzanne S. Adams, husband and wife; John R. Ferrell and Carol M. Ferrell, husband and wife; J. Michael Fromm and Georgene Fromm, husband and wife; George M. Griswold and Jean M. Griswold, husband and wife; John D. Schannep and Helen H. Schannep, husband and wife; Margery Bush, wife of Frank Bush; Robert R. Elkins and Corrine D. Elkins, husband and wife; Jean C. Baker, an unmarried woman; and Kingston J. Smallhouse and Dorothy J. Smallhouse, husband and wife, Defendants/Appellants.

No. 2 CA-CIV 4186.

Court of Appeals of Arizona Division 2.

Oct. 20, 1982.

Johnson, Dowdall & Payne by J. Mercer Johnson and Jones, Dickerman, Nuckolls, Edwards & Smith, P.C. by Donald E. Dickerman, Tucson, for plaintiff/appellee.

Bolding & Zavala by Michael O. Zavala, Tucson, for defendants/appellants.

OPINION

BIRDSALL, Judge.

This appeal arises out of a condemnation action. The appellee, Tucson Electric Power Company, filed its complaint against appellants and other property owners to condemn rights to allow the appellee to construct a second 138 KV circuit over easements it had acquired in condemnation proceedings in Pima County Superior Court No. 129474 in 1974. The issue of public use and necessity was tried to the court in November, 1980, with the trial on damages and appellants' counterclaim to follow. Prior to this second trial the court granted the appellee's motion in limine to prohibit introduction of certain testimony and exhibits with reference to the previous action, No. 129474.

The remaining issues of damages on the complaint and the counterclaim were tried to the court, a jury having been waived, and a judgment was entered July 6, 1981, awarding compensation damages to the appellants and denying any relief on the counterclaim.

The issues first presented on appeal concern the trial court's granting the motion in limine. By that ruling the appellants were precluded from offering evidence collaterally attacking the earlier condemnation judgment. The evidence consisted of the proposed testimony of the attorney who represented the condemnees in the prior action and various letters and other documents leading to the approval of the final judgment in that cause.

The appellants contend that the trial court erred because:

1) The prior judgment was ambiguous and therefore parol evidence was admissible to show the meaning of certain language in the judgment.

2) The same parol evidence was admissible to prove their fraud allegations.

3) Improper standards were used to find no ambiguity in the language in the judgment.

4) The pretrial statement precluded the court from granting the motion in limine.

5) The court's ruling effectively dismissed the counterclaim without a trial, since all of their evidence was precluded by that ruling.

We disagree with appellants.

The facts necessary to an understanding of these issues concern the proceedings leading to the earlier judgment and that judgment itself.

In 1971 the appellee filed Cause No. 129474 in the Superior Court of Pima County to condemn certain of the restrictive covenants of Flecha Caida Ranch Estates No. 3 and certain parcels of real property in the subdivision to obtain a 50-foot right-of-way easement for the construction, operation and maintenance of a 138,000 volt or 138 KV transmission line.

The appellee brought the present action on January 24, 1980 to condemn the same restrictive covenants and additional rights in the same parcels of real property for the construction, operation and maintenance of a second 138 KV transmission line or circuit over the easement condemned in 1974 as a result of cause No. 129474. The earlier case was contested by a number of the owners in said subdivision, many of whom are appellants here. The trial court bifurcated the issues of public use and necessity and compensation for separate trial. The issue of public use and necessity was tried and a partial judgment entered which found that the taking of the 50-foot easement for construction, operation and maintenance of a 138 KV transmission line was for a public and necessary use.

The parties then entered into a compromise settlement of the remaining issue in accordance with various letters and proposed forms of judgment, the precluded exhibits. A final form of judgment was prepared, approved by the attorneys for the parties thereto, signed by the court and filed.

The provision in that judgment which appellants attack here is the language contained in paragraph 2 thereof that the transmission line is "to be operated only as a nominal 138,000 volt system." They contend the word "only" meant "forever" and that, by the use of that word the appellee agreed it would never again in the future condemn for additional use of that easement. All of the issues presented by the appellants are founded on this same theory, that is, that the appellee could never again exercise its right of eminent domain over the property.

This appeal was submitted without oral argument and taken under advisement. Upon our first consideration of the appeal after it was ordered under advisement, we informally agreed that none of the appellants' contentions had merit. We also thought that the final judgment of the trial court should be affirmed for another controlling reason. We therefore advised counsel that we believed the law to be that the power of eminent domain can never be surrendered or contracted away; that even if there is an attempt to contract away the power, it can be resumed at will. We ordered briefs to be filed on that issue. The appellee has responded with an exhaustive brief in support of the proposition, arguing that the judgment can be affirmed for that reason as well as the other reasons initially urged for affirmance. The appellants did not file a supplemental brief. Since we consider the law to be well settled, with no contrary authority, and since we do not wish to infer that the theory upon which the appellants commenced this action can be countenanced, we affirm on the basis we have raised sua sponte.

The appellee is a public service corporation as defined in Article XV, Section 2 of the Arizona Constitution. As a public service corporation the appellee is, for the purposes of condemnation, an agency of the State of Arizona. A.R.S. § 12-1115(C) provides:

"A person seeking to acquire property for any of the public uses authorized by this title is an agent of the state."

The appellee as a public service corporation has the right to condemn property for a necessary and public use for the purposes provided in A.R.S. § 12-1111.

The law is abundantly clear that a public authority cannot contract away its right to eminent domain since such action would deprive that authority of a power essential to public welfare. 26 Am.Jur.2d Eminent Domain Sec. 17.

The same principle is enunciated in 29A C.J.S. Eminent Domain Sec. 4:

"... the sovereign power to take private property for public use cannot be surrendered, alienated, or contracted away, since it is essential to the public welfare and a sovereign power cannot be surrendered."

Over fifty years ago the Supreme Court of the United States in the oft-cited decision of State of Georgia v. City of Chattanooga, 264 U.S. 472, 44 S.Ct. 369, 68 L.Ed. 796 (1924), stated:

"... The taking of private property for public use upon just compensation is so often necessary for the proper performance of governmental functions that the power is deemed to be essential to the life of the state. It cannot be surrendered, and, if attempted to be contracted away, it may be resumed at will...." 264 U.S. at 480, 44 S.Ct. at 370, 68 L.Ed. at 799.

This principle of law has been followed uniformly in all jurisdictions. The following decisions are closely analogous to the factual situation presented here.

In Burke v. Oklahoma City, 350 P.2d 264 (Okl.1960), the City of Oklahoma City commenced proceedings in 1941 to condemn a fee interest in 50 acres of land. The action was ultimately compromised by defendant's conveyance of a fee interest in 15.26 acres of land and the grant of an easement of 1.72 acres to the city. Thereafter the city commenced two separate actions to condemn a fee interest in 8.56 acres of land and an easement across and adjacent to the 1.72 acre parcel. In contesting these actions it was contended that the two tracts of land were involved in the previous condemnation action...