APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.
Mr. Arnold Mandl and Messrs. Kibbey, Bennett, Gust, Smith & Rosenfeld, for Appellant.
Mr. L. C. McNabb, for Appellee.
[41 Ariz. 352] ROSS, C. J.
This is a proceeding by the city of Phoenix to condemn 40 acres of 120 acres of Zali
Mandl's land for a reservoir site to be used in connection with the city's waterworks system. There is no dispute that the use for which the land is sought is public; that its locality is suitable and necessary for the city's purposes. Only the ascertainment of the value of the 40 acres taken and the damages accruing to the uncondemned parcel is left for determination. These issues were twice submitted to juries. On the first trial the verdict was for $14,000, but this verdict was set aside and a new trial ordered because the court was of the opinion that error had been committed in not instructing the jury to consider the suitability of the land for subdivision and sale for high-class desert home sites. On the second trial the verdict was for $12,000 for the value of the 40 acres taken and $500 for damages to the adjoining 80 acres. The evidence at both trials was practically [41 Ariz. 353] the same, but the error for which a new trial was granted was corrected in the second trial. Upon the last verdict, judgment was entered condemning the 40 acres upon condition that plaintiff deposit in court the sum of $12,500, with interest at six per cent. per annum from December 30, 1930, until paid, and the costs taxed at $63.30. The appeal is from this judgment.
The land taken and the land not taken consists of three legal subdivisions of 40 acres each, three-quarters of a mile long. The condemned 40 is the easterly one. It is all desert in character, and higher than the cultivated areas in the neighborhood. It has no water rights, and is not susceptible to irrigation by gravity. All of the evidence was to the effect that its character, its location, setting and surroundings made it very desirable for high-class desert homes. The expert testimony of defendant placed the value at $1,000 to $1,500 per acre, if subdivided and platted into lots or estates and sold on partial payment plan with a reasonable down payment and the balance in deferred payments. These same witnesses placed the value of the two untaken 40's at $1,000 per acre, and estimated the damages thereto to be from thirty to fifty per cent. of their value. The testimony of plaintiff's experts placed the cash or market value of the 40 acres taken at from $50 to $400 and the damages to the rest as nothing.
The defendant claims the court erred in instructing the jury upon the question of the value of the land taken, such instruction being as follows: "The first question to determine, as I have said, is the actual value of the forty acres to be taken upon which they propose to build reservoirs. The actual value as of December 18th, 1930, and by actual value is meant in law the market value, and that is what you are to find. What is the market value of that forty acres [41 Ariz. 354] as of December 18th, 1930? In determining the market value you are not to consider the price at which the property would sell for under special or extraordinary circumstances, but are to determine its value if sold in the market under ordinary circumstances for cash, and assuming that the owners are willing to sell and the purchaser is willing to buy. . . . The test is its fair market value if offered in the market under ordinary circumstances for cash and a reasonable time being given to make the sale. Market value is the amount which the property would sell for if put upon the open market and sold in the manner in which property is ordinarily sold for cash in the community where it is situated, with a reasonable time being given to find a purchaser to whom to make the sale" and in refusing to give to the jury her requested instruction that "you are not limited to sales for cash, but may consider what the property would bring if sold for a reasonable payment in cash with the balance payable on reasonable time payments."
Defendant also complains of the court's ruling permitting the plaintiff, over her objection, to ask her witnesses on cross-examination the cash price or value of the land taken, the objection being that defendant did not have to accept or take a cash price, but was entitled to a price obtainable when sold on reasonable terms as to time and payments.
The objections to the evidence and the requested instruction fully and completely bring into view the defendant's contentions as set forth in her assignments.
The first criticism of the court's instruction is that it required the compensation to be in cash. We understand that this is directed at both the medium of payment and the time or times of payment. The state Constitution provides that:
[41 Ariz. 355] "No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner." Section 17, art. 2.
Section 1337, Revised Code of 1928, provides for money to be paid into court to secure or compensate the owner of property taken or damaged. These provisions of our law clearly contemplate compensation to the owner in money at the time or before his ...