City of Yuma v. Arizona Water Co.

522 P.2d 765, 22 Ariz. App. 4, 1974 Ariz. App. LEXIS 391
CourtCourt of Appeals of Arizona
DecidedMay 30, 1974
DocketNo. 1 CA-CIV 1705
StatusPublished
Cited by2 cases

This text of 522 P.2d 765 (City of Yuma v. Arizona Water Co.) 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 Yuma v. Arizona Water Co., 522 P.2d 765, 22 Ariz. App. 4, 1974 Ariz. App. LEXIS 391 (Ark. Ct. App. 1974).

Opinion

OPINION

EUBANK, Judge.

This is a second appeal resulting from the appellant-City of Yuma’s condemnation of the appellee-Water Company’s water [6]*6plant and property serving the city. The first appeal is reported at Arizona Water Co. v. City of Yuma, 7 Ariz.App. 53, 436 P.2d 147 (1968).

In the first appeal the jury was concerned with determining the “fair and equitable value of such [water] plant and property, including its value as a going concern” and severance damage, if any. A.R.S. § 9-518 B., as amended. The jury found that the fair and equitable value of the water plant and property was $4,-999, 213, including $50,000 for severance damages, $90,000 for the water rights, and $175,000 for “going concern” value, and its verdict was affirmed by this Court.

This second appeal results from a second trial made necessary by A.R.S. § 9-518 D., as amended. This section grants the condemning authority the option of either paying the first judgment and being placed into possession of the water plant and property, or rejecting the judgment, dismissing the condemnation action, and paying all of the Water Company’s trial expenses. If the condemning authority opts to pay the judgment, as the City of Yumá did here, they are placed in possession of water plant and property by the trial court under a statutory bond in favor of the Water Company, until such time as a second trial is held to determine the “fair and equitable value” to be paid for the “additions, betterments, improvements and extensions” required to be made to the water plant by the Water Company between the date of the commencement of the first trial and the date of actual possession by the condemning authority. A.R.S. § 9-518.F and I, as amended. In the case at bar it was stipulated that this valuation period ran from January 1, 1963 through July 19, 1968, or approximately five and one-half years.

The second trial began on March 24, 1970, before the trial judge, sitting without a jury, and was completed on the following day. On February 1, 1971, the court filed its' findings, conclusions of law and judgment awarding the appellee Water Company $1, 111, 451, included in this judgment was the sum of $1,101,451 awarded as the fair and equitable value of the additions,' betterments, improvements and extensions to the water plant. This latter-mentioned sum included $41,000 as going concern value over and above that awarded in the first judgment and a credit of $32, 637.40 to the City for the salvage value of “retirements” made during the valuation period. An additional $10,000 was stipulated to be paid to the Water Company by the City for maps which when added made the net judgment $1, 111, 451. The record shows that the trial court adopted exactly the approach to value and opinion of the Water Company’s expert witness, John E. Housiaux, in its findings, conclusions of law and judgment. The City of Yuma, hereafter “City” appeals from the judgment.

The City first contends that historical cost or actual cost of additions and betterments constitutes insufficient evidence upon which to support a finding of fair and equitable value of such additions and betterments to the water plant. In theory, we agree. Unless the res to be val-used is valued within a relatively short time of its purchase, its real value or fair market value may have little or no relationship to its original or actual cost. See City of Phoenix v. Consolidated Water Co., 101 Ariz. 43, 47, 415 P.2d 866, 870 (1966). However, in the matter sub judice all experts for all parties relied on original or actual cost data to some extent in their respective approaches to value without objection by either side. In any regard, this reliance on original or actual cost data could not be considered error since the legislature in A.R.S. § 9-518 E., as amended, has specifically authorized the finder of fact to consider the actual cost reports at the second trial.

The City next claims error based on the fact that the judgment was computed by aggregating separate elements from two different appraisal theories or techniques. The basis of this argument is that both of the Water Company’s expert wit[7]*7nesses testified that their respective opinions of fair and equitable value were based on the assumption that title to the water plant and facilities vested in the City as of December 31, 1962, and that as owner of the property for the valuation period from January 1, 1963 through July 19, 1968, the City would have to bear the burden of the retirements. Retirements are defined as property in existence in the water system inventoried and appraised, as of December 31, 1962, for the first trial that went out of the system by the time of the 1968 valuation date. The effect of these assumptions was for expert Polenske to reject entirely from his opinion of value any value for the $151,663.89 (original cost) retirements, while expert Housiaux allowed the City a credit or offset in the sum of $32,637.40 for the retirements’ salvage value. This latter approach to value was adopted by the trial court in its findings. We agree with the City that both assumptions made by the Water Company experts were erroneous.

Our Supreme Court noted in Desert Waters, Inc. v. Superior Court, 91 Ariz. 163, 370 P.2d 652 (1962) that A.R.S. § 9-518 was the specific eminent domain statute and A.R.S. § 12-1111 et seq., were the general statutes in the situation where a city condemns a water plant and property. The special statutes do not treat the point in time when title to the condemned utility vests in the city. The general statute, A. R.S. § 12-1126, as amended, provides that when the final judgment has been satisfied, the court shall make a final order of condemnation, describing the property condemned and the purposes of the condemnation, and that when a copy of that order is recorded with the county recorder “thereupon the property described shall vest.” We believe that the latter or general statute governs this case. Our review of the record shows only a partial satisfaction of the second judgment and no entry of a final order of condemnation. Therefore as a matter of law, title to the condemned property was not vested in the City as of December 31, 1962, and has not vested to this day. The burden of the retirements, under the Polenske and Housiaux approach to value, must then be borne by the appellee Water Company. The question then is whether there is evidence in the record upon which to base an adjustment of this error or must we reverse and remand this matter for a new trial ?

Our review of the record shows that there is evidence on this question. The City’s expert, I. G.

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Bluebook (online)
522 P.2d 765, 22 Ariz. App. 4, 1974 Ariz. App. LEXIS 391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-yuma-v-arizona-water-co-arizctapp-1974.