STATE of Arizona ex rel. William E. Willey, State Highway Engineer, Appellant,
Harry E. GRIGGS and Maurine Griggs, his wife, Appellees.
[89 Ariz. 71] Wade Church, Atty. Gen., Jay Dushoff, John T. Amey, Asst. Attys. Gen., for appellant.
Dunseath, Stubbs, Morse & Burch, Tucson, for appellees.
This appeal challenges the constitutionality of A.R.S. § 18-155(D), which deals with the procedure for evaluating and condemning private property for public use by the State Highway Commission.
On February 17, 1959, the State Highway Commission (hereinafter referred to as the 'State' or the 'Commission') pursuant to the above statute, passed a resolution stating that a portion of a tract of land owned by appellees (hereinafter referred to as 'appellees' or 'defendant-landowners') was to be condemned in connection with the improvement of a section of the Casa Grande-Tucson Highway. Appellees were
notified of the resolution on the above date, and a complaint in condemnation was filed on September 9, 1959, as a result of which the property of appellees was condemned.
A.R.S. § 18-155(D), which generated this appeal, and which is here construed by [89 Ariz. 72] this Court for the first time, reads as follows:
'D. For the purpose of assessing compensation and damages for the taking of property under the power of eminent domain for the purposes herein provided, its actual value immediately preceding the date on which the said highway commission by resolution establishes the necessity of acquiring said property for said purposes, shall be the measure of compensation and damages; and no sale, lease, agreement or other transaction affecting such property made thereafter shall constitute evidence of its value; and improvements placed upon such property subsequent to the date of such resolution shall not be included in the assessment of compensation and damages. Notice of the Commission's action shall be given by filing a certified copy of the resolution together with a map showing the location and route of the highway affecting such property or properties in the office of the county recorder of the county in which the property is situated and by mailing a copy of said resolution and map to all persons having an interest of record in such property at their last known addresses. In the event that action is not commenced in the superior court in the county in which the property is situated within two years from the date of said resolution to acquire such property under the power of eminent domain, then the measure of compensation shall be as of the date of the summons. The commission may at any time prior to payment of the compensation and damages awarded the defendants by the court or jury abandon the proceedings and cause the action to be dismissed without prejudice provided, however, that the court may require that reasonable attorneys' fees, expert witness fees and costs be paid as a condition of dismissal.'
The provision is involved in this appeal because the State contends the date of valuation should be February 17, 1959, the resolution date, whereas the defendant-landowners argue that the valuation date should be September 9, 1959, the date of the summons. The parties stipulated that if the resolution date was proper for valuation, the damages amounted to $21,000, but that if the summons date governed valuation, then the damages were $26,000. Defendants' motion for summary judgment was then granted by the lower court, which indicated in its judgment that September 9, 1959, the summons date, had been adopted as the date of valuation. The State appealed, asserting that 'in granting appellees' motion for summary judgment, the trial court, in effect, ruled that Section 18-155(D) is unconstitutional insofar as it [89 Ariz. 73] establishes the date of resolution as the valuation date.'
The Arizona Constitution provides in Article 2, section 4, A.R.S., that 'No person shall be deprived of * * * property without due process of law.' More specifically, in section 17 of Article 2, the Constitution states that 'No private property shall be taken or damaged for public * * * use without just compensation having first been made, or paid into court for the owner * * *.' In County of Maricopa v. Paysnoe, 83 Ariz. 236, 239, 319 P.2d 995, 996, we said that section 17 'means that an infringement on the use of property which would diminish its value in whole or in part is a loss which must be compensated.' In our view, a resolution adopted pursuant to section 18-155(D) has the effect of diminishing the value of a landowner's property.
The language of section 18-155(D) makes clear to the landowner that from the date of the resolution, he acts at his peril when entering any transaction with respect to the land. This is because although the
State may never actually condemn the property, if it does, no transaction, appreciation, or improvement enhancing the property's value after the date of the resolution, can be included in the award of compensation. It is apparent that from the date of the resolution, the use to which the land can be put by its owner is restricted severely: its saleability is reduced, leasing is made less feasible, and improvements effectively prohibited. Thus, as the Supreme Court of Iowa stated in Liddick v. City of Council Bluffs, 232 Iowa 197, 219, 5 N.W.2d 361, 373, quoting from section 65, Lewis on Eminent Domain:
"If property, then, consists not in tangible things themselves, but in certain rights in and appurtenant to those things, it follows that, when a person is deprived of any of those rights, he is to that extent deprived of his property, and hence that his property may be taken in a constitutional sense, though his title and possession remain undisturbed; and it may be laid down as a general proposition, based upon the nature of property itself, that, whenever the lawful rights of an individual to the possession, use or enjoyment of his land are in any degree abridged or destroyed by reason of the exercise of the power of eminent domain his property is pro tanto taken, and he is entitled to compensation." (Emphasis supplied.)
In re Forsstrom,
44 Ariz. 472, 481, 38 P.2d 878, 882 (overruled on other grounds); Cf. Pima County v. Bilby,87 Ariz. 366, 371, 351 P.2d 647, 650; see also James v. City of Greenville,227 S.C. 565, 578-579, 88 S.E.2d 661, 667; Gasque v. Town ...