APPEAL from a judgment of the Superior Court of the County of Apache. P. A. Sawyer, Judge. Judgment affirmed.
Mr. Dodd L. Greer, County Attorney, for Appellant.
Mr. W. E. Ferguson and Mr. J. Smith Gibbons, for Appellees.
[38 Ariz. 489] LOCKWOOD, J.
The county of Apache, hereinafter called plaintiff, brought suit against H. G. Udall and Dorinda Udall, his wife, hereinafter called defendants. The complaint in substance alleges that defendants are the owners of certain land in Apache county; that for the purpose of properly conducting its affairs it is necessary for plaintiff to acquire an easement over the property of defendants for the construction and maintenance of a road thereon; that plaintiff and defendants are unable to agree as to the compensation to be paid therefor, and that this proceeding is instituted for the purpose of condemning such easement under the provisions of chapter 23, Revised Code of 1928.
Defendants appeared specially for the purpose of objecting to the jurisdiction of the court, but afterwards [38 Ariz. 490] filed a general demurrer, which of course waived the plea to the jurisdiction of the person. The demurrer was sustained, and, plaintiff refusing to amend and defendant moving for the dismissal of the action, it was so ordered, and from the orders sustaining the general demurrer and dismissing this action this appeal was taken.
The action was avowedly brought under the provisions of sections 1329-1349, Revised Code of 1928, inclusive, which cover the general subject of eminent domain, and compose chapter 23 of that Code. Section 1329, supra, so far as we need consider it for our present purpose, reads as follows: "Subject to the provisions of this chapter, the right of eminent domain may be exercised by . . . a county . . . for the following uses . . . toll-roads, by-roads, plank and turnpike roads and highways. . ." (Italics ours.) Section 1335, supra, reads in part as follows: "Uses for which may be taken. Before property can be taken, it must appear that the use to which it is to be applied is a use authorized by law; that the taking is necessary to such use. . . ." While section 1338, supra, contains the following language: "Complaint; contents. The complaint must contain . . . a statement of the right of the plaintiff. . . ." The remainder of the chapter deals with the manner in which the right of eminent domain is to be exercised, which is, generally speaking, that which is attempted to be followed by plaintiff in this action.
We are of the opinion that under the language of sections 1335 and 1338, supra, when it is sought by a county to condemn a right of way for a "highway" under section 1329, supra, the complaint must show affirmatively that the steps necessary to establish a legal highway already have been taken. This may be done either by the direct allegation that the proposed road is of that character, or a statement of facts which show that as a matter of law it is. Since [38 Ariz. 491] the complaint herein nowhere contains either form of allegation, the court properly sustained the general demurrer on the ground that the complaint did not state a cause of action under chapter 23, supra, and we might well affirm the order dismissing without any further discussion.
But counsel for plaintiff and defendants in their briefs both assure us that the real question before the trial court, and on which it based its ruling, was whether boards of supervisors are limited in condemning easements for county highways to the method of procedure set forth in section 1701, Revised Code of 1928, or whether they might also avail themselves of the provisions of chapter 23, supra. It is to be regretted that the pleadings were not drawn and the issues framed so that they specifically raise that question. But in view of the statement of counsel and the extreme importance of an early determination of the question, we shall assume for the purposes of the remainder of this decision that it is properly before us on this appeal.
Section 1701, supra, which it is contended by defendants is the only method under which supervisors may establish or alter highways for counties and condemn and appropriate public or private property therefor, is quite lengthy. It may be summarized as follows:
A petition must first be presented to the board of supervisors by ten or more resident taxpayers, or the governing body of a legal subdivision of the county, praying that the highway be established or altered, and giving the beginning, terminus, and general course or direction of the proposed highway. The board may reject the petition if it desires, or if it approves it, the following procedure is then followed: The county engineer is directed by the board to make a survey of the proposed highway and file a report of the survey, together with a map thereof. A day is [38 Ariz. 492] set for a public hearing on the petition, and notice is given to all persons affected, in the manner provided in the statute. At the hearing the board considers the feasibility, advantages, and necessity of the proposed highway,
and if in its opinion it is a public necessity the establishment thereof is approved and a board of appraisers is appointed, who appraise the property damage caused by the highway in the manner set forth in the section. The report of the appraisers is considered by the board in the statutory manner, and the petition is then either rejected or granted finally. When such final resolution and a map of the highway is filed in the office of the county recorder, it is then deemed to be established. An appeal may be taken by any claimant of compensation to the superior ...