State ex rel. Herman v. Southern Arizona Land Co.

424 P.2d 181, 5 Ariz. App. 139, 1967 Ariz. App. LEXIS 371
CourtCourt of Appeals of Arizona
DecidedFebruary 21, 1967
DocketNo. 2 CA-CIV 286
StatusPublished
Cited by2 cases

This text of 424 P.2d 181 (State ex rel. Herman v. Southern Arizona Land 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
State ex rel. Herman v. Southern Arizona Land Co., 424 P.2d 181, 5 Ariz. App. 139, 1967 Ariz. App. LEXIS 371 (Ark. Ct. App. 1967).

Opinion

MOLLOY, Judge.

This is an appeal from a judgment granting a new trial in a condemnation action. A trial to a jury had resulted in a verdict which the landowner considered insufficient in amount, and, on motion for a new trial, the court entered an alternative additur order giving the state the option of accepting the additur or being accorded a new trial. The additur was rejected by the state and thereafter, the court granted a new trial. This appeal followed.

The property concerned consisted of 320 acres of land through which the Tucson-[140]*140Benson interstate highway passed in a northwest-southeast direction. To the northwest of this land, the interstate highway was being rerouted, to a location north of the old highway, and at the subject property, the new highway joined the old right-of-way, with an interchange being constructed at the joinder. In the “before” situation the subject land had approximately 2,000 feet of frontage on the north side of the highway and over a mile of frontage on the south side of the highway. In a prior condemnation action, the state had condemned the access rights to the highway along approximately 2500 feet of frontage on the south side of the highway so that as to this portion, where no land was actually taken, the case was concerned only with the access rights of 2,930 feet of highway frontage.

Of this, 455 feet was to be rendered non-access by the construction of a fence and approximately 980 feet was to remain with access rights to the old highway, from which the interstate traffic was removed through the relocation of the principal highway toward the north. The remaining 1,495 feet of frontage was separated by a fence from its access to the old highway, which remained the interstate eastbound lane. However, this 1,495 feet of frontage was provided access to a newly constructed one-way (eastbound) access road.

On the north side of the highway, in the before situation, there was approximately twenty-one acres of land and, of this, approximately six and one-half acres was actually taken for the construction of a relocation of the highway in question and for the traffic interchange. The trial court’s alternative additur order, which resulted in the granting of a new trial, concerned only this northern parcel of land. As to this land, the jury awarded $42,500 for the land taken and found, in special verdicts, that there was neither severance damages nor special benefits as to the remaining land as the result of the taking. The trial court’s additur would have increased the value of the land actually taken in the sum of $15,000 and would have granted severance damages in the sum of $25,000.

There were only two professional witnesses testifying at the trial. The state’s appraiser estimated the value of the land in the north at $42,500, opined that there was no severance damage to the remaining land on the north side of the highway, and estimated severance damages by reason of the construction of the 455 feet of fence on the south as being $4,000. This appraiser allowed no damage for the depriving of the 1,495 feet of frontage on the south from access to the main highway and placing it on a frontage road. The jury’s verdict accepted in its entirety these opinions of the state’s appraiser. The property owners’ appraiser’s estimates were substantially higher. She had estimated the value of the land taken at $132,080, the severance damages to the northern portion at $65,618, and the severance damages to the land lying to the south of the highway at $120,801.

There was no contention made below nor is there on appeal that any part of the damage suffered by the landowner was the result of noncompensable factors,1 such as from the rerouting of traffic, and we therefore approach the problems presented as if there were no relocation of a highway involved. See Huish v. Lopez, 70 Ariz. 201, 218 P.2d 727 (1950).

The principal reason expressed by the state’s appraiser as to why the remaining portion to the north had suffered no severance damage was that by reason of the “unique” nature of the interchange in question and the particular location of the remaining property in relation thereto, the property would be ideally suited for a combination motel, restaurant and service station similar to those established by several national chains. In the before situation, according to this appraiser, the land [141]*141had only such value as pertained to all other land along this highway of which there was ample similar property available. He was of the opinion that in the before situation the land was most suitable to be sold in parcels for potential commercial purposes. He conceded that in the after situation the property could not be used as a truck stop, but saw no special value in the property for this purpose.

The property owners’ appraiser, conversely, contended that in the before situation the northern parcel was ideally suited for a truck stop, that there was a market for it for this use, and that in the after situation it was unusable as such. According to the property owners’ appraiser there was no demand for the remaining parcel as a combination motel and restaurant.

The two appraisers differed also as to the comparability of sales of smaller parcels of land along the subject highway. The state’s appraiser contended that larger parcels of land such as those under consideration should have lower value than the smaller parcels of land sold with frontage along the highway. He contended that in buying larger parcels, the buyer always contemplates making a profit in subdividing. The property owners’ appraiser, on the other hand, accentuated the concept of “plottage increment,” which gives greater value to property by reason of a larger area. According to this appraiser, modern-day commercial uses along a major highway require larger areas than previously, and larger parcels will often sell for more, proportionately, than smaller parcels.

The first question presented for review is the legal question of whether a trial court can grant a conditional additur in a condemnation action. In contending that there is no such power in the trial court, the state relies upon Article 2, Section 17, Arizona Constitution, A.R.S., which provides in part:

“ * * * which compensation shall be ascertained by a jury, unless a jury be waived as in other civil cases in courts of record, in the manner prescribed by law.”

The property owner has pointed out in its brief that the cases cited by the state, denying the power of additur to a trial court under similar constitutional provisions, hold that the trial court’s powers in this regard are limited, if it is dissatisfied with the amount of the jury’s verdict, to granting a new trial, i. e., State ex rel. O’Brien v. Brinker, 169 Wash. 79, 13 P.2d 63 (1932), and Bennett v. Jacksonville Expressway Authority, 131 So.2d 740 (Fla.1961).

In its reply brief, the state acknowledges that the question of additur:

“ * * * is probably really a moot question at this particular point.”

With this statement, we agree. The state failed to accept the additur suggested by the trial court, and a new trial has been granted. The additur has been forced on neither party and hence neither party has been injured by the order. Under these circumstances, we can see no violation of the constitutional provision quoted above.

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Related

Austin v. State Ex Rel. Herman
459 P.2d 753 (Court of Appeals of Arizona, 1969)
Board of Trustees Eloy Elemen. Sch. Dist. v. McEwen
430 P.2d 727 (Court of Appeals of Arizona, 1967)

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Bluebook (online)
424 P.2d 181, 5 Ariz. App. 139, 1967 Ariz. App. LEXIS 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-herman-v-southern-arizona-land-co-arizctapp-1967.