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Parker v. State ex rel. Church

Supreme Court of Arizona

February 1, 1961

Duane PARKER and Babetta Jo Parker, his wife; and Port Parker and Ella M. Parker, his wife, Appellants,
STATE of Arizona ex rel. Wade CHURCH, Attorney General, Appellee.

[89 Ariz. 125] Carl Tenney, Phoenix, and Sam J. Head, Prescott, for appellants.

Robert W. Pickrell, present Atty. Gen., Wade Church, former Atty. Gen., and Ralph L. Fenderson, Jr., former Asst. Atty. Gen., for appellee.

BERNSTEIN, Vice Chief Justice.

This is an appeal by Duane Parker and Babetta Jo Parker, his wife, and Port Parker and Ella M. Parker, his wife, (hereinafter referred to as 'defendants') from a judgment in a condemnation suit wherein damages were awarded the defendants for the taking by the State of the defendants' rights of access along Black Canyon Highway, which damages the defendants consider inadequate. The case was tried to the court sitting without a jury.

The facts are, that in the early 1950s a new highway known as the Black Canyon Highway was constructed in Arizona. At the inception of the events, on which this appeal is based, this highway extended northerly from Phoenix past Cordes Junction to a point just within the Verde Valley

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in Yavapai County, approximately one and a half miles from the Verde River, where it abruptly ended. In March of 1955, the defendants exercising their option, obtained the preceding year, purchased land which they thought would lie adjacent to said highway if it were extended across the [89 Ariz. 126] Verde River and thence to Flagstaff, Arizona.

In 1956, the State Highway Department approached the defendants for easements for highway construction. After negotiations between the parties, the defendants granted the State certain easements in return for approaches, access rights and frontage service roads. The defendants then began to develop their properties in anticipation of the construction of the extension of the Black Canyon Highway.

Also in 1956, the Congress of the United States passed the Interstate Highway Act. This act, in the part material here, provided that highways coming under the Act as Interstate Highways were to be of limited and controlled access. After the highway was built in front of the defendants' properties, but before it was completed to Flagstaff, the State Highway Commission declared it part of the Interstate Highway System. The commission then abrogated their part of the easement agreement entered into with the defendants in 1956 whereby the State was to provide approaches, access rights and frontage service roads for the defendants' properties. On March 27, 1957, the State brought this action to condemn all rights of access owned and enjoyed by the defendants.

On June 31, 1959, the trial court made its findings and award, and judgment was entered for the condemnation of the rights of access of the defendants and assessed their damages as follows: Duane Parker et ux. $16,270 and Port Parker et ux. $13,120. After the trial court denied the defendants' motion to vacate judgment and motion for new trial, this appeal was perfected.

The only problems that are raised in this appeal relate to the damages allowed by the trial court and whether the trial court abused its discretion in relation to certain evidentiary matters.

The defendants in their first assignment of error contend the trial court erred in receiving, over the objection of the defendants, evidence as to the cost of the properties when they were first purchased by the defendants for the reason that the conditions had so changed by the time the condemnation suit was filed that said cost could no longer have any bearing or relationship to the true value of the rights of which they were being deprived. The price paid for land when acquired is important evidence in determining its present value when such land is taken by eminent domain. However, such price is only admissible if the sale was recent and voluntary and no change in conditions or marked fluctuations in values have occurred since said sale. Nichols on Eminent Domain, Vol. 4, § 12-311(1), page 53. When the defendants acquired their properties there was no highway constructed adjacent thereto and no definite plans were in existence to build one. Shortly after the defendants acquired the properties[89 Ariz. 127] in question, the Highway Department approached them for easements for highway construction which they granted in return for access rights from their properties to the highway and other consideration. This easement agreement greatly enhanced the value of the defendants' properties in relation to what they had originally paid for same as testified to by the expert witnesses. The conditions and values of the properties having thus been greatly changed since the defendants originally acquired them, the price paid by the defendants had no probative value and was improperly received as evidence relating to their present value. However, we find from the record ample competent evidence as to the value of the properties given by the expert witnesses to support the judgment. As stated in Home Owners' Loan Corporation v. Bank of Arizona, 54 Ariz. 146 94 P.2d 437, 442:

'* * * we assume that if the court received improper evidence it

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did not consider it but considered only the competent evidence. When a case is tried to the court without a jury, even though improper evidence is offered and received, if the competent evidence is sufficient to support the judgment it will be sustained regardless of the error.'

See also American Eagle Fire Insurance Co. v. Van Denburgh,76 Ariz. 1, 257 P.2d 856; Wamble v. ...

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