STATE OF ARIZONA, ex Rel. ARTHUR T. LaPRADE, Attorney General, Appellant,
E. M. CARROW and EDITH MAUDE CARROW, His Wife, Appellees
APPEAL from a judgment of the Superior Court of the County of Mohave. J. W. Faulkner, Judge. Judgment reversed and cause remanded with instructions.
Mr. Joe Conway, Attorney General, Mr. A. R. Lynch, Assistant Attorney General, Mr. B. J. Choisser, Associate Counsel, and Mr. Frank X. Gordon, for Appellant.
Mr. Harlow H. Akers, Mr. John W. Murphy, and Mr. Carl G. Krook, for Appellees.
[57 Ariz. 430] LOCKWOOD, C.J.
This is an action by the State of Arizona, plaintiff, to condemn for highway purposes certain lands belonging to E. M. Carrow and Edith Maude Carrow, his wife, defendants. Judgment was rendered fixing the damages of defendants, and the state has appealed therefrom.
The facts material to a determination of the appeal may be stated as follows: In May, 1933, the state highway commission adopted a resolution directing the acquisition of the lands necessary for certain improvements on state highway number 66, and, as improved and realigned, passing over the lands involved in this proceeding. Suit to condemn the property was filed by the state on October 26, 1933. The matter remained in abeyance, however, for some time and was not tried until 1939. Defendants and their predecessors in interest have for many years operated a large cattle business in northern Arizona. At the time of the suit their cattle ranged over some 120,000 acres of land, approximately 40,000 of which lay north of the Atchison, Topeka & Santa Fe Railroad, and the balance to the south. The latter portion is not involved in any manner in this action. Approximately 6,000 [57 Ariz. 431] acres lie between the railroad on the south and highway 66 on the north.
The range of defendants was composed of four classes of lane, (a) patented land owned by them, (b) land owned by the railroad company but leased to defendants from year to year, (c) state land leased to them for period of five years, and (d) land belonging to the United States government. At the time of the inception of the suit this government land was used by defendants without any legal right thereto, but at the time of the trial they had acquired a permit for its use from the government, under the Taylor Act, 43 U.S.C.A., § 315 et seq. The land lying between the railroad and the highway included all four of these classes of land. The damages found by the court were divided into three items. The first was for the land actually taken, amounting to somewhat less than forty acres. This was valued at $5 per acre, and there is no dispute between the parties as to the correctness of this part of the judgment. The second item was for erosion and change of drainage of some of the lands adjoining the highway, caused by the cuts and embankments made necessary by its construction. The amount allowed for this was $3,000. The third was for the injury to the use for grazing purposes of the land between the highway and the railroad, caused by the construction by the state of barbed wire fences on the right of way and adjacent thereto which prevented defendants' cattle from watering properly, and, in effect, rendered such land almost useless for grazing purposes. The damages for this item were fixed at $5,000. In the findings and judgment no apportionment of the damages, either on account of erosion and diversion of drainage or the loss of the use of the lands for grazing purposes aforesaid was made as between the lands owned by defendants and [57 Ariz. 432] those leased by them, nor between the damage to the reversion and leasehold interest in the latter class.
The situation is governed by the provisions of sections 27-915 and 27-916, Arizona Code
1939, which read, so far as material, as follows:
"27-915. Value, damages, and benefits to be found. The court or jury shall ascertain and assess:
"1. The value of the property sought to be condemned and all improvements thereon pertaining to the realty, and of each and every separate estate or interest therein; if it consist of different parcels, the value of each parcel and each estate or interest therein shall be separately assessed;
2. If the property sought to be condemned constitute only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned, and the construction of ...