[87 Ariz. 369] Raul H. Castro, County Atty., and Lyle R. Allen, Chief Civil Deputy County Atty., Pima County, Tucson, for appellant.
Boyle, Bilby, Thompson & Shoenhair, and Richard B. Evans, Tucson, for appellee.
This is an appeal by Pima County (hereinafter called the 'County') from an order granting the motion of plaintiff-appellee (hereinafter called the 'plaintiff') for a new trial and vacating the verdict and judgment in favor of the County.
Plaintiff is the owner of two parcels of land located in Pima County on the Southwest corner of Pima Avenue and Alvernon Way. A gasoline service station is operated on the corner parcel by third parties under a lease from plaintiff; the adjoining parcel is vacant and unimproved. Prior to 1954 Alvernon Way was a paved two-lane street with drainage ditches on each side to carry the natural flow of water. The street was practically level with plaintiff's land and there was no appreciable grade in the approaches thereto.
During 1954 the County reconstructed Alvernon Way into an inverted crown roadway by lowering its center from two to three feet, thus creating an upward grade of ingress to, and a downward grade of egress from, plaintiff's land. As a result of the reconstruction three to four lanes of traffic can generally pass on Alvernon Way and the natural flow of drainage water is now carried on the lowered center of the roadway.
[87 Ariz. 370] Plaintiff commenced the instant action against the County on the theory of inverse eminent domain, claiming that he is entitled to damages caused by the change of grade and by the partial conversion of Alvernon Way into a drainage ditch. The action was tried before the court and a jury; the latter rendered a verdict in favor of the County. After judgment was entered on the verdict, plaintiff moved for a new trial on the grounds that the verdict and judgment were contrary to the law and the evidence. The County appeals from the order granting plaintiff's motion.
The County assigns two errors: the first relating to the legal sufficiency of the order under review, and the second to plaintiff's right of action to recover his alleged damages. For ease of analysis we shall discuss these assignments in inverse order to determine whether the order granting a new trial should be affirmed.
The County's second assignment of error is as follows:
'The court erred in failing to dismiss at the close of Plaintiff's case and at the close of all the evidence, for the reason that the entire proceedings were contrary to law in that no damages may be recovered from the public by the abutter for change of grade of a public highway.'
Section 17, Article 2, of the Arizona Constitution, A.R.S., provides, in part:
'No private property shall be taken or damaged for public or private use without just compensation having first been made, or paid into the court for the owner, * * *.'
As the County did not institute eminent domain proceedings under Articles 2 or 3 of Chapter 8, Title 12, of our statutes, A.R.S. §§ 12-1111 et seq., 12-1141 et seq., and as there is no statutory procedure prescribed for the commencement of an action by the plaintiff against the County, plaintiff has sued herein on the theory of inverse eminent domain, relying on the Constitution itself. This Court has previously held Section 17, Article 2, of the Arizona Constitution to be self-executing (County of Mohave v. Chamberlin, 78 Ariz. 422, 281 P.2d 128), and it is perfectly clear that the absence of enabling legislation cannot deprive plaintiff of his constitutional right to just compensation for any of his private property which is 'taken or damaged' by the County. It thus becomes necessary to review the decisions of this Court interpreting the above constitutional provision to determine whether plaintiff's property was 'taken or damaged' as a result of the County's reconstruction of Alvernon Way.
In the early case of Mosher v. City of Phoenix, 39 Ariz. 470, 482, 7 P.2d 622, 627, this Court stated:
'Our Constitution provides that property shall not be 'taken or damaged' [87 Ariz. 371] without just compensation therefor. Article 2, § 17. Under provisions like this, it is generally held that a change in the established grade of a street, which injuriously affects the value of adjoining property, is 'damage.' * * * The damage is to the easement of ingress and egress. * * * And the measure of damage is the difference between the value of the abutting property before and after the change of grade.'
In re Forsstrom, 44 Ariz. 472, 38 P.2d 878, and Grande v. Casson, 50 Ariz. 397, 72 P.2d 676, which limited the rule set forth in Mosher v. City of Phoenix, supra, were in turn expressly overruled in State ex rel. Morrison v. Thelberg, 1960, 87 Ariz. 318, 350 P.2d 988 (reversing on rehearing State ex rel. Morrison v. Thelberg, 86 Ariz. 263, 344 P.2d 1015). There, this Court held that abutting land owners are entitled to damages for impairment of access to a highway which is converted into a controlled-access highway, and stated:
'We therefore overruled the principle laid down in In re Forsstrom and Grande v. Casson, supra, which declared the noncompensability of an abutting property owner for the destruction or substantial impairment of his right of access to such highway. We also reject the reasoning upon which the rule rests i. e., that there is a presumption of payment. The rule to the contrary, supported by the weight of authority, is based upon the fact that an abutting property ...