Uvodich v. Arizona Bd. of Regents
| Decision Date | 10 April 1969 |
| Docket Number | CA-CIV,No. 2,2 |
| Citation | 453 P.2d 229,9 Ariz.App. 400 |
| Parties | Jack L. UVODICH and Edna B. Uvodich, husband and wife, and the Unknown Heirs of any Deceased Defendant, Appellants, v. ARIZONA BOARD OF REGENTS, a body corporate, and the City of Tucson, an Arizona municipal corporation, Appellees. 559. |
| Court | Arizona Court of Appeals |
Gary K. Nelson, Atty. Gen., Stanley Z. Goodfarb, Special Asst. Atty. Gen., Phoenix, Dino DeConcini, City Atty., J. Dan O'Neill, Asst. City Atty., Tucson, for appellees.
A summary of the proceedings in the trial court which culminated in the judgment from which this appeal is taken is as follows. The Arizona Board of Regents instituted a condemnation action to acquire a parcel of realty located at the corner of Hawthorne Street and Martin Avenue in Tucson, owned by Mr. and Mrs. Uvodich. The defendants filed a counterclaim in four counts. The plaintiff moved to dismiss the counterclaim and the motion was granted with leave to amend the counterclaim and to join the City of Tucson as a party defendant. The defendants filed an amended counterclaim against the Board and a cross-claim against the City of Tucson. Both the Board and City moved to dismiss the counterclaim on the ground that it failed to state a claim for relief. After submission of memoranda and argument thereon, the trial court granted the motion to dismiss and the formal judgment duly entered thereon recited:
'At said hearing, this court, having heard argument and reviewing the file, and all pleadings and matters contained therein, ordered the granting of the motions to dismiss * * *.' 1
The defendants now contend that their counterclaim stated a claim for relief, hence the motion to dismiss was erroneously granted. However, in view of the fact that matters outside the counterclaim were presented to and considered by the trial court, as evidenced by the recitation in the judgment set forth above, the motion was treated and disposed of as one for summary judgment. Our review therefore is predicated on the same record. We shall consider each of the counts set forth in the counterclaim seriatim.
Count 1 in substance alleged that the Board, in conjunction with the City and in furtherance of the expansion of the University of Arizona, vacated and closed Hawthorne Street from Warren to Martin Avenues, and North Warren Avenue between Hawthorne and East Second Streets, which for many years prior thereto had been public thoroughfares; that these 'That on or about the date of filing of the summons and complaint in the above-entitled action and presently, the only street physically closed in the immediate vicinity of the defendants' property was Hawthorne Street from the west curb line of Martin to the east curb line of Warren Avenue.
streets were a 'direct and easy means of ingress and egress' to their property and the business conducted thereon; that the closing of these streets had 'materially and drastically interfered with ingress and egress' to and from their property by their customers and had destroyed the 'ease of ingress and egress and general access' to their property; and that they had been permanently deprived of substantial and essential means of ingress and egress. At the time of the hearing on the motion to dismiss, the defendants were permitted to amend the amended counterclaim to allege that the Board and the City had vacated and closed other nearby streets. The parties stipulated that, at all times material, access could be had to the defendants' property 'by a traveler on Hawthorne entering Martin or by a traveler on Third Street entering Martin.' Appended to the Board's motion to dismiss was an affidavit of counsel, which remains uncontroverted in the record, stating:
'That Warren Avenue was at that time and is presently physicially open from Fifth Street to Speedway.
'That Martin Avenue on the date of the filing of the complaint was and is presently physically open from Speedway to Sixth Street.'
Examination of the diagram below indicates that there was no closure of the streets on which the subject property
abutted. As to these streets, the defendants had an easement of ingress and egress to and from the property which constituted a property right compensable by the state when destroyed or substantially impaired. State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 350 P.2d 988 (1960); State ex rel. Herman v. Jacobs, 7 Ariz.App. 396, 440 P.2d 32 (1968). There being no destruction or impairment of access to the abutting streets, the trial court ruled as a matter of law that any closures or temporary blockage of other streets or other places did not give the defendants a claim for damages. This question was one for the court's determination. City of Phoenix v. Wade, 5 Ariz.App. 505, 428 P.2d 450 (1967).
The appellant relies on language in Reese v. De Mund, 74 Ariz. 140, 245 P.2d 284 (1952) to the effect that the extent of a grantee's private right of user in streets and alleys shown on a plat, to which by reference his conveyance was made, is limited to such streets and alleys as are reasonably and materially beneficial to him and of which the deprivation would reduce the value of his lot. (74 Ariz. 142, 245 P.2d 284.) In Reese, the complaint alleged that the plaintiff had suffered special damage by reason of the vacation of an alley in that the sewer line which served their property, together with their gas and utility line, was located in the alley being abandoned and also that their property was being depreciated in value because of the closing of the alley. Although this original opinion held that a claim for relief had been stated, on rehearing it was reversed and our Supreme Court affirmed the trial court's dismissal of the complaint. Reese v. De Mund, 75 Ariz. 66, 251 P.2d 887 (1952). The court stated:
'These damages, as appear from the complant, are not different in either degree or kind from those suffered by the public, generally, and can constitute no basis for the cause of action claimed.' 75 Ariz. 67, 251 P.2d 887.
It may be stated as a general rule that one whose property does not abut on the closed street ordinarily has no right to compensation for the closing or vacation of the street if he still has reasonable access to the general system of streets. See Annot., 49 A.L.R. 330; Annot., 93 A.L.R. 639. A decrease in the value of his property because of diversion of traffic away from it affords no basis for compensation. Rayburn v. State, 93 Ariz. 54, 378 P.2d 496 (1963); Rutledge v. State, 100 Ariz. 174, 412 P.2d 467 (1966); Kansas City v. Berkshire Lumber Company, 393 S.W.2d 470 (Mo.1965); Wolf v. Commonwealth, 422 Pa. 34, 220 A.2d 868 (1966); People ex rel. Department of Public Works v. Symons, 54 Cal.2d 855, 9 Cal.Rptr. 363, 357 P.2d 451 (1960). Here, the closure of Hawthorne Street between Martin and Warren Avenues constituted merely a deprivation of one means of access to the general system of streets. The defendants still had reasonable access to the street system and the only damage they sustained did not differ in kind, although it might have in degree, from that suffered by the public in general, i.e., mere circuity of travel. Under these circumstances, notwithstanding they were damaged by the closing of the street, the trial court properly ruled that such damages were merely Damnum absque injuria. Gayton v. Department of Highways, 149 Colo. 72, 367 P.2d 899 (1962); Archenhold Automobile Supply Company v. City of Waco, 396 S.W.2d 111 (Tex.1965); People v. Symons, supra.
Count 2 realleged the allegations set forth in Count 1 as to the closing of the designated streets and further alleged that:
'* * * the City of Tucson joined with the plaintiff in furtherance of said expansion program and did close said streets and alleys in consideration of and relying upon the express promise and agreement of the plaintiff, through its duly authorized offices, to accept the responsibility for injury to the defendants Uvodich, from any damage or harm by In opposition to the motion to dismiss, the defendants submitted a memorandum of law and appended thereto an exhibit (Exhibit 1) to support their position that 'there was a direct binding and enforceable contractual obligation on the part of the Board of Regents inuring to the benefit of the said defendants and in the other persons injured by the vacation of the streets in question.' Construing the allegations of Count 2 most favorably to the defendants, it would appear that they were attempting to assert a third party beneficiary claim against the Board of Regents by virtue of its covenant in the quitclaim deed from the City (part of Exhibit 1) which recited:
reason of closing of said streets and the agreed appropriation thereof.'
'The grantee, the Board of Regents of the universities and state college of Arizona, in consideration of the transfer of the above described portions of streets and alleys, Covenants to hold harmless the City of Tucson, a municipal corporation, From any damages awarded by a court of competent jurisdiction against the City of Tucson as the result of any action or cause of action brought by any owner or owners of real property in the City of Tucson claiming damages as a proximate result of the adoption of ordinance No. 2895 vacating the above described portions of streets and alley.' (Emphasis added)
It is apparent that the Board did not undertake to indemnify the City of Tucson for Any damages sustained by property owners as a result of the vacation of the subject streets. It agreed to indemnify the City only for 'damages awarded by a court of competent jurisdiction.' As a consequence thereof, the adverse ruling on Count 1 of the counterclaim caused the claim alleged in Count 2 to fail.
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