Weintraub v. Flood Control Dist. of Maricopa County

• Decision Date: 10 July 1969
• Docket Number: No. 9612--PR,9612--PR
• Citation: Weintraub v. Flood Control Dist. of Maricopa County, 456 P.2d 936, 104 Ariz. 566 (Ariz. 1969)
• Parties: E. A. WEINTRAUB and Morris Weintraub, Appellants, v. FLOOD CONTROL DISTRICT OF MARICOPA COUNTY, a municipal corporation, by W. B. Burns, Mrs. James T. O'Neil, and L. Alton Pat Riggs, its directors, Appellee.
• Court: Arizona Supreme Court

Page 936

456 P.2d 936

104 Ariz. 566

E. A. WEINTRAUB and Morris Weintraub, Appellants, v. FLOOD CONTROL DISTRICT OF MARICOPA COUNTY, a municipal corporation, by W. B. Burns, Mrs. James T. O'Neil, and L. Alton Pat Riggs, its directors, Appellee.

No. 9612--PR.

Supreme Court of Arizona, In Banc.

July 10, 1969.

Evans & Kunz, by Donald R. Kunz, Snell & Wilmer, by B. C. Porter, Phoenix, for appellants.

Shimmel, Hill, Kleindienst & Bishop, by Rouland W. Hill, Donald D. Meyers, Phoenix, for appellee.

McFARLAND, Justice.

Appellee Flood Control District of Maricopa County, a municipal corporation--hereinafter referred to as the District--petitioned this Court for and has been granted a review from a decision of the Court of Appeals, Division One, which reversed a summary judgment in favor of the District, and granted judgment in favor of appellants, E. A. and Morris Weintraub--hereinafter referred to as the Weintraubs. 9 Ariz.App. 202, 450 P.2d 714. Decision of the Court of Appeals vacated.

The Weintraubs owned 2,240 acres of land located a few miles outside the City of Phoenix. On May 23, 1960, the District gave public notice of the possibility that in the future certain property, or a part thereof, might be needed for flood-control purposes. (The described property included part of the Weintraubs' land.) Notice was given by the adoption and later recording of the following resolution:

'WHEREAS, the Maricopa County Flood Control District was organized on August 3, 1959, pursuant to the provisions of Title 45, Chapter 10, Article 5 of the Arizona Revised Statutes of 1956 as amended, and

'WHEREAS, prior to the organization of the Maricopa County Flood Control District as aforesaid and subsequent thereto, the United States Corps of Engineers, the Maricopa County Highway Department, and recently the Flood Control Engineer, have caused surveys and engineering studies to be made in Maricopa County to determine possible flood control areas, location of flood control dams and reservoirs, and

'WHEREAS, it has been determined that a contemplated and proposed flood control area consisting of a reservoir and dam may need to be located in Sections 22 through 27, and 34 and 35, Township 5 North, Range 1 East Gila and Salt River Base Meridian, and

'WHEREAS, it is in the best interest of the inhabitants of Maricopa County and the Maricopa County Flood Control District that all persons or legal entities who claim an interest in the aforesaid properties or who contemplate placing improvements thereon be notified by the Board of Directors of the Maricopa County Flood Control District of the aforesaid contemplated flood control projects.

'NOW, THEREFORE, BE IT RESOLVED, that a copy of this resolution, together with a map which reflects the area of the proposed reservoir and dam on the New River located in Sections 22 through 27, and 34 and 35, Township 5 North, Range 1 East, Gila and Salt River Base Meridian, be included in the minutes of the Maricopa County Flood Control District and be included as a public record in the Maricopa County Board of Supervisor's Office and recorded in the Maricopa County Recorder's Office so that all parties who have an interest therein will be afforded notice of the Maricopa County Flood Control District's proposed projects in the aforesaid area.

'DATED this 23 day of May, 1960.'

Nine months after the recording of the resolution, the Weintraubs demanded that the resolution be rescinded, claiming that their property had been taken by inverse eminent domain without compensation. About three and a half months thereafter, the District complied with the demand and passed a resolution which rescinded its former resolution, which also was recorded. Five months later the District filed this action for a declaratory judgment that the adoption and recording of the resolutions did not constitute a taking or a damage to the Weintraubs' property. The Weintraubs also counter-claimed for damages to their land in the total amount of $2,688.000. The trial court granted summary judgment in favor of the District, holding that the adoption and recording of the resolutions did not constitute or amount to a taking or damage. The judgment read, in part, as follows:

'That the pleadings herein raise a single issue of law, to-wit: Whether the adoption and recording of such aforesaid resolutions by the plaintiff constituted a taking or a damaging of defendant's property for which the defendants are entitled to be compensated; that there is no genuine issue as to any material fact affecting such issue of law and that, as a matter of law, plaintiff's motion should be granted and plaintiff should have the relief prayed for in its complaint for Declaratory Judgment and the defendants should be denied relief on their counter-claim.

'NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

'1. That plaintiff's actions consisting of adopting the said resolution of May 26, 1960, or of adopting substantially similar resolutions, of including any such resolutions in the minutes of the plaintiff's Board of Directors and in the records of the Board of Supervisors of Maricopa County, and of recording any such resolutions in the office of the County Recorder of Maricopa County, or of making any other publication of any such resolutions, is within the lawful powers and authority granted to the plaintiff by the Constitution and laws of the State of Arizona and does not constitute or amount to an unlawful taking or damaging of the property described in any such resolution which would entitle the owners thereof or persons claiming an interest therein to be compensated in damages therefor.

'2. That plaintiff's actions of adopting the resolutions dated May 23, 1960 and June 12, 1961, of including such resolutions in the minutes of plaintiff's Board of Directors and in the records of the Board of Supervisors of Maricopa County, and of recording them in the office of the County Record of Maricopa County, did not cloud the title of defendant's property described in such resolutions and did not constitute or amount to an unlawful taking, Pro tanto taking or damaging of such property or of any property rights therein of the defendants for which defendants are entitled to be compensated in damages.'

The law is settled in Arizona, as stated in Gardiner v. Henderson, 103 Ariz. 420, 443 P.2d 416, that:

'* * * A taking * * * commences with an order of immediate possession which permits the condemnor to enter the land, demolish the improvements, and commence the erection of public improvements * * *.' (Emphasis added.)

Other jurisdictions have uniformly held that the mere publication of the fact that particular or specified property may be the subject of a future appropriation or condemnation action, or the plotting or planning thereof, is not a taking or damaging of such property entitling the owner to be compensated therefor. Bakken v. State of Montana, 142 Mont. 166, 382 P.2d 550; City of Houston v. Biggers, Tex.Civ.App., 380 S.W.2d 700; 29 A C.J.S. Eminent Domain § 135, p. 533; 26 Am.Jur.2d, Eminent Domain, § 169; Anno. in 64 A.L.R. 546.

In the case of Hempstead Warehouse Corporation v. United States, 98 F.Supp. 572, 120 Ct.Cl. 291, it is stated:

'Defendant was contemplating the expansion of Mitchel Field, an airport, and the plan of expansion took in plaintiff's property. This plan was widely publicized, and plaintiff says that this prevented it for a long time from selling the property and for this undefined length of time it is entitled to the rental value of the land.

'It is obvious that there is more than one weakness in plaintiff's position, but it suffices to say that a threat of condemnation is not a taking, as plaintiff confesses * * *.'

In City of Houston v. Biggers, supra, the court held:

'* * * Even though it might have, as a practical matter, interfered with the marketability of the property, it would cause but an incidental damage which is not compensable. The fact that at some future time land might be taken under eminent domain, even where the threatened taking is imminent, is but one of the conditions on which an owner holds property.'

It is contended by the Weintraubs in their brief that the Board of Directors acted without authority when it caused the resolution to be recorded.

Section 45--2361, as amended, of Arizona Revised Statutes, defines the procedure to be followed in order to effectively adopt or approve a comprehensive program of flood control. It is argued by the Weintraubs that the Board of Directors acted in derogation of that statute.

The Board of Directors, by giving public notice of a possible future flood-control program, was not substituting a method for adoption of a comprehensive program which is different from that set forth in A.R.S. § 45--2361, as amended. Rather, the Board of Directors recorded the...