APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment reversed and cause remanded with instructions.
Mr. Elmer Graham and Mr. Renz L. Jennings, for Appellant.
Mr. Joe Conway, Attorney General, and Mr. A. R. Lynch, his Assistant, for Appellees.
[50 Ariz. 398] LOCKWOOD, J.
This is an appeal by John Grande, hereinafter called plaintiff, from a judgment in
favor of J. A. Casson, Arizona State Highway Commission, and the state of Arizona. The facts of the case, in so far as they appear in the abstract of record, may be stated chronologically as follows:
On the 18th of February, 1937, plaintiff filed a petition for a writ of garnishment, accompanied by a bond. The title of the petition was "John Grande, Plaintiff, v. J. A. Casson and the Arizona State Highway Commission, Defendants," and in the body thereof we may, [50 Ariz. 399] perhaps, gather that an action for damages had been previously filed by plaintiff against the two defendants named. Nothing, however, in the abstract shows the nature or allegations of the complaint on which the affidavit of attachment was apparently based. The next thing we find is a motion to quash a writ of garnishment, filed February 27th. The writ to which it refers does not appear in the record, but from the motion it may, perhaps, be thought that one was issued on the 19th of February against the treasurer of the state of Arizona, in the same action as that in which presumably the affidavit for attachment above referred to was filed. On the 4th of March, a demurrer and answer was filed, probably directed against the missing complaint above referred to. We next find that a document, entitled "First Amended Complaint," was filed on March 9th. For some reason, in addition to Casson and the Highway Commission, the state of Arizona itself appears as a defendant. On the 11th of March the state filed a special appearance for the purpose of objecting to the jurisdiction fo the court. On the 16th of March there was a second amended application for a writ of garnishment. We presume a garnishment must have been issued on this application, for on the 18th of March the defendants moved that the writ issued on the 16th of March be quashed. It might, perhaps, be imagined that the garnishees had filed an answer to the writ on March 16th, although it does not appear in the abstract, for the reason that on March 22d plaintiff filed an affidavit contesting garnishees' answer, and tendering a pleading in support of such affidavit. This covers practically all of the pleadings found in the record. The minute entries show that on the 22d of March, the defendant's special appearance and objection to the jurisdiction, the motion to quash the writ of garnishment, [50 Ariz. 400] and the demurrer were argued, and on the 23d of March were taken under advisement. On the 26th of April they show the court sustained the demurrer to the complaint and granted the motion to quash the writ of garnishment, and plaintiff having elected to stand on his pleadings, on May 15th judgment was rendered that the plaintiff take nothing by his action, and that the defendants be allowed their costs.
There are three assignments of error. The first that the court erred in sustaining the demurrer to the complaint; the second, that it erred in quashing the writ of garnishment; and the third, that it erred in sustaining the plea of defendant, the state of Arizona, to the jurisdiction of the court.
It is somewhat difficult, after reading the pleadings and the briefs, to determine which assignment of error to consider first, in order that this opinion may be reasonably logical and clear; but, perhaps, it will be best to determine the sufficiency of the complaint first. There were two causes of action set up therein. In the first count the plaintiff alleges that the Arizona State Highway Commission is a body politic composed of five members, naming them, and the state of Arizona is a body politic incorporated, and that he complains of the commission, the state, and of one J. A. Casson, as follows. He then alleges that his suit is in damages, and for the ground thereof states that he has been the owner for about 20 years of certain lots in Railroad addition to the city of Douglas, abutting in part on the Sixteenth Street extension through such addition, with the appurtenant use of ingress and egress thereto to said Sixteenth Street extension; that on May 1, 1936, he was operating a mercantile, gasoline station and tourist camp on said lots, with a large investment, and making a good profit thereon. He then alleges that the Sixteenth Street extension had, [50 Ariz. 401] in some unnamed manner, become United States federal highway 80, the transition, however, being alleged to have occurred after plaintiff had acquired title to his lots, and that about May 1, 1936, the defendants entered upon said highway 80 and forcibly trespassed upon plaintiff's right of access thereto by, under pretext of opening, widening, altering, and changing said highway and improving the grade thereof, shutting off egress and ingress to plaintiff's lots over said highway 80 for some six months while the changing and improving of the grade was going on, to plaintiff's damage in the sum of $2,700.
For a second cause of action, which he alleges was against Casson, the state of Arizona,
and the Arizona State Highway Commission, as a body politic, without naming the individual members thereof, he set up the same matters in regard to his ownership of the lots with the right of ingress and egress, and that the defendant Casson, acting in some relation to the other named defendants which was unknown to plaintiff, but with their active participation, erected a concrete curb from 18 inches to 3 feet in height along the edge of the highway next to plaintiff's property line, which blocked permanently ingress and egress to his premises from said highway 80, and altered and widened the grade of the street, and the sewer facilities which were then existent, to such an extent that the flood waters drained up and against the concrete curb on plaintiff's property, and stood thereon, and, because of the negligent manner of constructing the sewerage and drainage facilities by the defendants, the sewerage appurtenant to or adjacent to plaintiff's premises backed up and stood stagnant, emitting foul odors and stenches, and created a dangerous sanitary condition on and about plaintiff's premises to his damage in the sum of $5,300.
[50 Ariz. 402] It will be seen on a consideration of these two counts that the first one, in substance, is for damages alleged to have been caused by the temporary blocking of plaintiff's right of ingress and egress during the alteration and changing of grade of federal highway 80; while the second is for an alleged permanent injury caused by two things: (a) The construction of a curb along the edge of the highway by plaintiff's property, which caused flood waters to back up on the property; ...