City of Tucson v. Ruelas

508 P.2d 1174, 19 Ariz. App. 530, 1973 Ariz. App. LEXIS 586
CourtCourt of Appeals of Arizona
DecidedApril 24, 1973
Docket2 CA-CIV 1322
StatusPublished
Cited by4 cases

This text of 508 P.2d 1174 (City of Tucson v. Ruelas) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Tucson v. Ruelas, 508 P.2d 1174, 19 Ariz. App. 530, 1973 Ariz. App. LEXIS 586 (Ark. Ct. App. 1973).

Opinion

HOWARD, Judge.

In the appeal of this eminent domain action the appellant questions the failure of the trial court to grant a mistrial and its refusal to strike testimony of appellees’ appraiser. The pertinent facts will be developed later in the opinion.

The appellant claims that during jury selection and after appellant had passed the panel, four prospective jurors indicated in response to appellees’ voir dire of the jury that they favored giving more than fair market value to a property owner whose land was taken under the power of eminent domain. Appellant, however, has not filed with this court a transcript of the voir dire of the jury. Our appellate review is limited to the record on appeal. Morris v. Southwest Savings and Loan Association, 9 Ariz.App. 65, 449 P.2d 301 (1969) ; McKinley v. Greyhound Park, 5 Ariz.App. 93, 423 P.2d 368 (1967); Patton v. Paradise Hills Shopping Center, Inc., 4 Ariz.App. 11, 417 P.2d 382 (1966). Appellant has filed an affidavit with the court signed by the attorney who tried this case . in an attempt to cure this deficiency. • .Af *532 fidavits cannot be used to raise facts extraneous to the record. Tucson Gas & Electric Company v. Schantz, 5 Ariz.App. 511, 428 P.2d 686 (1967). We therefore decline to consider this issue.

Appellant also contends that the trial court erred in denying its motion to strike the testimony of appellees’ appraiser as to certain sales which occurred after the taking. Appellees used this testimony to prove the value of the subject property before the taking. Appellant claims this constituted prejudicial error because the sales included an enhancement in value due to the project which occasioned the taking of appellees’ property.

Sales occurring after the date of taking can be used to show the value of the subject property in the “before” situation. Defnet Land & Investment Co. v. State, 14 Ariz.App. 96, 480 P.2d 1013 (1971). It is also the general rule that comparable sales which reflect an enhanced value brought about by the making of the improvement are not admissible. Robles v. City of Tucson, 16 Ariz.App. 100, 491 P.2d 489 (1972); City of Chicago v. Blanton, 15 Ill.2d 198, 154 N.E.2d 242 (1958) ; Socony Vacuum Oil Company v. State, 170 N.W. 378 (Iowa 1969); Redfield v. Iowa State Highway Commission, 252 Iowa 1256, 110 N.W.2d 397 (1961); Cole v. Boston Edison Company, 338 Mass. 661, 157 N.E.2d 209 (1959) ; Latham Holding Co. v. State, 16 N.Y.2d 41, 261 N.Y.S.2d 880, 209 N.E.2d 542 (1965); State Highway Commission v. Lacey, 79 S.D. 451, 113 N.W.2d 50 (1962); City of Houston v. Collins, 310 S.W.2d 697 (Tex. Civ.App.1958); 5 Nichols, The Law of Eminent Domain § 21.31 [1] (1969). This general rule is subject to the caveat that project enhancement can be considered when the property was not “probably within the scope of the project from the time the government was committed to it.” Merced Irrigation District v. Woolstenhulme, 4 Cal.3d 478, 93 Cal.Rptr. 833, 483 P.2d 1 (1971).

The burden in this case was upon appellant to show that an otherwise comparable sale is not comparable because the price has been affected by the proposed project. Socony Vacuum Oil Company v. State, supra. This burden is in connection with the preliminary question of whether the evidence of the sale is admissible, initially a question left to the sound discretion of the trial court. State v. McDonald, 88 Ariz. 1, 352 P.2d 343 (1960) ; Town of Williams v. Perrin, 70 Ariz. 157, 217 P.2d 918 (1950).

In Robles v. City of Tucson, supra, we held that the court did not abuse its discretion by admitting sales into evidence when there was a valid question of fact as to whether the proposed project influenced the sales. In such instances whether the sales were affected or not is a question for the jury under proper instructions by the court.

Turning our attention to the facts, the instant condemnation action was for the purpose of constructing the Main Avenue-Granada Avenue realignment. In the “before” situation the subject property abutted Main Avenue on the East and Granada Avenue on the West. Located directly across the subject property on Main Avenue was the office building of Tucson Gas and Electric Company. This property also abutted West Sixth Street on its southern boundary. Main Avenue extended North of the subject property an additional block, crossed the Southern Pacific Railroad right-of-way and ■ continued in a northerly direction.

In the “after” situation, Granada Av.e-nue, as realigned, cuts northerly across the rear of the subject property, northerly through the block immediately north of the subject property, crosses the railroad tracks and then ties into old Main Avenue. The portion of Main Avenue which bordered the subject property and the Tucson Gas and Electric property is still in existence but instead of crossing the railroad tracks it turns to the left at the tracks and ties into the new Main-Granada transition.

The City condemned the rear 13,322 square' feet of the subject property. The access of the subject property and all prop *533 erties between the subject property and the railroad track is denied due to the new realigned avenue.

Appellees’ appraiser, in valuing the subject property in the “before” situation, used seven sales which occurred after the date of the taking, including the purchase of the remainder of the subject property. All of these sales were made to Tucson Gas and Electric Company and ranged in price from $1.01 per square foot to $13.47 per square foot. All sales abutted the west side of the old Main Avenue in the two blocks previously mentioned. Using these sales, appellees’ appraiser valued the subject property in the “before” situation at $7.00 per square foot for a total value of $166,810.00. He also thought that the construction of the improvement had damaged the subject property because it no longer had access to Granada Avenue along its western border. He therefore valued the subject property in the “after” situation at $6.00 per square foot, which was the price that Tucson Gas and Electric Company paid for it.

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Bluebook (online)
508 P.2d 1174, 19 Ariz. App. 530, 1973 Ariz. App. LEXIS 586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-tucson-v-ruelas-arizctapp-1973.