State ex rel. Herman v. Wilson

In State ex rel. Herman v. Wilson, 103 Ariz. 194, 438 P.2d 760 (1968), the defendants owned a parcel of property with direct access to an abutting highway. Id. at 196, 438 P.2d at 761. The State converted the roadway into a controlled-access highway, eliminating the defendants' direct access thereto. Id. at 196, 438 P.2d at 762. In order for travelers to reach the defendants' property after the change, it was necessary to travel an additional 3,000 to 4,000 feet. Id. At trial, the owners sought to introduce evidence that conversion to a controlled-access highway caused greater difficulty for passing vehicles to reach the property. Id. at 196-97, 438 P.2d at 762-63. The State sought to preclude such testimony, asserting that the owners had no right to have traffic pass in front of their property. Id. Rejecting the State's argument, the court reasoned that "while it is to be acknowledged that an abutting owner does not have the right to insist that traffic pass over the highway in front of his property undiverted and unobstructed, this does not mean that if traffic is using the highway an abutting property owner may not profit from its flow." Id. at 197, 438 P.2d at 763. Furthermore, in concluding that the owner's testimony about the diminution in value of the property was appropriate, the court stated that the testimony was not "offered to prove the amount of her damages but to establish that she was damaged." Id. Chief Justice McFarland dissented, arguing that "the question of compensation for impaired access, when applied to the new type of high-speed limited-access highways now being built" needed reevaluation. Id. at 200, 438 P.2d at 766 (McFarland, J., dissenting). According to the dissent, the majority erred in considering the loss of traffic flow as a compensable element of damages. Id. at 203, 438 P.2d at 769. Applying the language from Thelberg and cases from other jurisdictions, the dissent concluded that "the measure of damages, where access is taken or impaired, is that part of the difference in the before and after market values of the remaining property, which is due to the taking of, or injury to the right of access, not including any damages caused by non-compensable factors." Id.