Mastick v. State

576 P.2d 1366, 118 Ariz. 366, 1978 Ariz. App. LEXIS 431
CourtCourt of Appeals of Arizona
DecidedJanuary 30, 1978
Docket2 CA-CIV 2533
StatusPublished
Cited by7 cases

This text of 576 P.2d 1366 (Mastick v. State) 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
Mastick v. State, 576 P.2d 1366, 118 Ariz. 366, 1978 Ariz. App. LEXIS 431 (Ark. Ct. App. 1978).

Opinions

OPINION

HOWARD, Judge.

This is an appeal from a judgment in an eminent domain proceeding. The record shows that prior to 1966 the subject property was part of a larger parcel which was bisected north to south by Highway U.S. 89. In 1966 in connection with the construction of Interstate Highway 1-19, a controlled [368]*368access highway, a condemnation action was filed by the State. At the trial of that action one of the property owners, Simon Mastick, testified that as a result of the construction of 1-19 the subject property in the before situation was worth $4,000 per acre, but was worth only $400 per acre in the after situation.

On June 25, 1975, the State of Arizona filed a condemnation action seeking to condemn a portion of the subject property for construction of a truck by-pass route to downtown Nogales. The before situation of the subject property in this case is the after situation of the subject property in 1966. In the before situation the subject property was bisected east to west by an access road leading to 1-19. However, both parcels of land had physical access to this road. In the after situation the new truck route bisects the property east and west and at 20 feet above the grade of the northern parcel. One can no longer go from one parcel to the other as in the before sitúa-tion. It was stipulated at trial that the State of Arizona would provide direct access to the new truck route for the northern parcel via a turn-out. The southern parcel, however, has no direct access to the new truck route but there was testimony that the State would allow the property owners access across a portion of state-owned land to an access road leading to the new truck route.

Appellants presented testimony showing the total damages to be between $856,000 and $1,094,200. The State’s appraisers testified the total damages were between $11,-175 and $66,687.

The case was tried to a jury which awarded appellants $27,000 for the 5.4 acres of land taken by the State and severance damages in the sum of $48,000.

In this appeal we are presented with six questions for review.

ADMISSIONS OF A LANDOWNER AS TO VALUE

Appellants contend the trial court erred in permitting the State to introduce the testimony of Simon Mastick from the 1966 condemnation case because it was too remote. We do not agree. This testimony constituted an admission as to the value of the subject property in the before situation. A statement of value by the owner, to be competent as an admission, must have been made sufficiently near in time to the date of the taking to be reasonably helpful to the jury. Central Branch U. P. R. Company v. Andrews, 37 Kan. 162, 14 P. 509 (1887); 5 Nichols’ The Law of Eminent Domain, 3rd Ed. § 18.6 (1975). Much must be left to the discretion of the trial court in determining whether the time was too remote or the conditions too dissimilar to make the evidence available. Patch v. City of Boston, 146 Mass. 52, 14 N.E. 770 (1888). As is the case of the admissibility of a previous sale of the subject property, no hard and fast rule can be laid down. For example, in Southern Electric Generating Company v. Leibacher, 269 Ala. 9, 110 So.2d 308 (1959) the previous sale of the property was ten years prior to the date of valuation but still held to be admissible.

Here there was testimony that the same physical condition upon which Mr. Mastick based his testimony in the previous action still existed on June 25, 1975. Appellants’ own appraisal witness testified that property values in the Nogales area had doubled since 1966, thus giving the jury a basis upon which to judge a value increase. Furthermore, this witness himself used a 1966 comparable sale in forming his evaluation opinion. We are unable to say the trial court abused its discretion in admitting this testimony.

THE STRIKING OF EXPERT TESTIMONY

Testifying on behalf of appellants was Mr. Timothy Weil, a licensed real estate broker in the states of Arizona, California and Texas. He is primarily a shopping center developer. His expertise includes the acquisition of shopping center sites. He has experience in valuing shopping center sites and has participated as a broker in the sale of these sites. His opinion as to the before value of the subject [369]*369property was based upon his experience in purchasing and developing a shopping center site on Highway U.S. 89 in Nogales. He believed the highest and best use of the subject property in the before situation was a shopping center site and it was his experience that a profitable shopping center could not be developed if one paid over $1.00 per square foot. He was then permitted to express a value for the property in the before situation based upon what he would be willing to pay for it as a shopping center developer. He could not give any opinion as to what the price of the property would be on the open market. He also expressed an opinion as to the after value of the subject property but admitted on cross-examination that he had no real basis for his opinion since the property had no commercial value in the after situation and his expertise went only to the valuation of commercial properties.

The trial court granted the State’s motion to strike Mr. Weil’s opinion of the subject property in the after situation. Appellants claim this was error. The State contends that not only was the trial court correct in granting the motion, but it should never have permitted Mr. Weil to give an opinion as to the value in the before situation. We do not decide whether the trial court erred in permitting Mr. Weil to testify as to the before value of the property. We do, however, call attention to the case of Indianapolis & Cincinnati Traction Company v. Wiles, 174 Ind. 236, 91 N.E. 161 (1910) wherein the trial court held that a witness cannot testify concerning what he would pay for the land since damages were to be determined by a fair market value and not by what a witness would be willing to pay for it. As to striking Mr. Weil’s testimony, since he testified that he had no expertise in the valuation of the property in its after situation, the court did not err. Board of Regents of the University and State Colleges of Arizona v. Cannon, 86 Ariz. 176, 342 P.2d 207 (1959).

THE STATE’S APPRAISAL TESTIMONY

Appellant contends that the trial court erred in failing to strike the valuation testimony of the State’s two appraisers. Prior to putting on the testimony of these two witnesses the State presented evidence that the subject property suffered flooding problems in the before situation which would cost $211,776 to cure before the property could be put to its highest and best use.

Mark Klafter, the State’s first appraisal witness, testified that the highest and best use of the subject property in the before situation was for investment purposes with future commercial use. As for the before value, it was his testimony that if the entire 32.9 acres of property were usable, its fair market value would be $20,000 per acre or a total of $658,000. Although he noted that it would cost $211,776 to make part of the property worth $20,000 per acre, he did not use that cost to cure figure in arriving at his before valuation. State’s exhibit No.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Board of County Commissioners v. Ferrebee
844 P.2d 308 (Utah Supreme Court, 1992)
State Ex Rel. Miller v. Filler
812 P.2d 620 (Arizona Supreme Court, 1991)
TCC ENTERPRISES v. Estate of Erny
717 P.2d 936 (Court of Appeals of Arizona, 1986)
FLOOD CONTROL DIST. OF MARICOPA CTY. v. Hing
709 P.2d 1351 (Court of Appeals of Arizona, 1985)
Selective Resources v. Superior Court
700 P.2d 849 (Court of Appeals of Arizona, 1984)
Mastick v. State
576 P.2d 1366 (Court of Appeals of Arizona, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
576 P.2d 1366, 118 Ariz. 366, 1978 Ariz. App. LEXIS 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mastick-v-state-arizctapp-1978.