Judgment reversed and case remanded with directions.
Urban R. Miller, of Williams, for appellant.
H. K. Mangum and T. M. Flick, of Flagstaff, for appellees.
De Concini, Justice. La Prade, C. J., and Udall, Stanford and Phelps, JJ., concur.
De Concini, Justice.
[70 Ariz. 159] Appellant, Town of Williams, brought an action in eminent domain against appellees to condemn certain of the latter's property needed in connection with a program of water works improvement. Appellant sought to condemn a right-of-way for a pipe line, being 25 feet in width by 5452 feet in length and covering an area of approximately 2.86 acres. Appellant further sought to condemn 40,019.21 cubic yards of clay, sand and gravel from a 10 acre tract to be used in constructing a reservoir. The excavation resulting from the taking thereof covered only an area of 6.81 acres, however, the tract of land owned by appellees and from which the material was taken amounted to at least 40 acres. In connection with the taking of the materials, appellant further sought to condemn a temporary roadway over the remainder of that 40 acre tract, amounting to .34 acre in area, leading from the "borrow pit" to the reservoir site. The cause was tried to a jury which awarded appellees $ 150.00 for the right-of-way, $ 4,001.92 for the removal of the construction materials and $ 250.00 for the temporary roadway, $ 100.00 of which defendant remitted by order of the trial court.
Appellant in its briefs makes eleven assignments of error and seven propositions of law. We will concern ourselves only with those necessary to dispose of this appeal.
Our first consideration is directed to a determination of the correctness of the award of $ 150.00 as compensation for the taking of the right-of-way over appellees' land and the award of $ 150.00 compensation for temporary use of appellees' land as a roadway from the "borrow pit" to the reservoir site. Appellees introduced no evidence as to the amount of compensation to which they were entitled as a result of the taking of these two items.
It is a fundamental and well-established rule of law that the burden of proof as to the amount of damages in condemnation proceedings is upon the property owner. The only evidence as to the amount of damages appellees suffered from the taking of the right-of-way was introduced by the appellant. Under this proof, the damages for the taking of the right-of-way amounted to $ 114.20. Consequently, the award must be reduced to that amount. Since there is no evidence as to the amount of damages which the taking of the right-of-way caused to the remainder, we cannot assume that any such damages exist.
[70 Ariz. 160] The same situation exists as to proof of damages for the temporary use of appellees' land as a roadway from the "borrow pit" to the reservoir. Under the only evidence introduced, that of appellant, the award must be reduced to the sum of $ 6.80.
A further question raised by the appellant in connection with the above items, is, did the trial court err in refusing to allow appellees' tenant to testify as to what benefit the water line would be to him? If such refusal were error, it is not prejudicial because the appellant has prevailed in this appeal upon the issue of measure of damages for the taking of the right-of-way. The refusal to allow the testimony was not error, though, because there was no evidence that the appellees would have the right to make use of the water therefrom. Moreover, since no evidence was introduced as to any damages which the pipe line had caused to the rest of appellees' land, the issue of benefit to the remaining land was immaterial, since under section 27-915 (3), A.C.A.1939, where only a part of a tract is taken for a public use, the benefits accruing to the residue may ...