71 P. 903 | Ariz. | 1903
The city of Tucson brought this action in the district court of Pima County to condemn property of the appellee known as “Block 207,” in said city, for the purpose of widening Congress Street, in said city.
The complaint in the action contained the following averments: “(1) That it is a municipal corporation, organized and existing under the laws of the territory of Arizona; that the defendants S. H. Draehman Cigar Company, a corporation, and Julius Goldbaum, Incorporated, are corporations organized under the laws of Arizona, and doing business in the city of Tucson, Arizona; that defendants Louisa J. Sanford and Don A. Sanford, her husband, are residents of the city of Washington, District of Columbia, and that all the other defendants are residents of Tucson, Arizona. (2) That the defendant Louisa J. Sanford is the owner of all that certain body of land in the city of Tucson, Arizona, known as ‘Block 207,’ in said city, according to the official field-notes and survey thereof, which said block consists of lots 1, 2, and 3, described as follows, to wit: Lot 1: ‘Beginning at the northeast corner of lot, run thence south, 81.4 degrees east, 11.88 feet; thence south, 83% degrees west, 118.14 feet; thence north, 81.4 degrees west, 22.44 feet; thence north, 88% degrees east, 118.14 feet, to place of beginning.’ Lot 2: ‘Beginning at northeast corner of lot, run thence south, 81.4 degrees east, 22.44 feet; thence south 83%
In the absence of a bill of exceptions or statement of facts, the correctness of the court’s ruling upon the demurrer pre sents the only question for our Consideration. Counsel for appellant contend that the demurrer should have been sustained for the reason that no right of eminent domain exists in the territory. Upon this point it is sufficient to say that this court, in the case of Oury v. Goodwin, 3 Ariz. 255, 26 Pac. 376, decided that the territory of Arizona, though not possessing sovereignty, is clothed with authority to provide for the exercise of the power of eminent domain by the clause in the Organic Act which says: “The legislative power of this territory extends to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States. ’ ’
It is further contended by counsel for appellant that, conceding the right of eminent domain to exist in the territory, the legislature has not conferred upon the city of Tucson power to exercise such right in the manner nor for the purpose sought in this action. The city of Tucson was incorporated by special charter granted by the legislature. An examination of this charter discloses that it conferred no power or authority to condemn property for municipal purposes. The legislature, in March, 1897, passed an act entitled “An act adding to the powers and privileges already vested by charter in incorporated cities.” Laws 1897, p. 97, No. 57. This act was general in its character, and applied alike to all incorporated cities in the territory. Among other things, it conferred upon such cities the power “to lay out and establish, open, alter, widen, extend, grade, pave or otherwise improve streets, alleys, avenues, sidewalks, parks and public grounds, and vacate the same.” Other provisions of the act set forth the conditions and limitations under which such improvements should be made, and authorized such cities to proceed, wherever necessary, under the Eminent Domain Act of the territory, to condemn private property for such improvements. It is contended by counsel for appellant that the act of March 18, 1897, is in conflict with that
Whether the city of Tucson is in a situation to avail itself of the power of eminent domain under the act without violating another provision of the Harrison Act prohibiting municipal corporations from “becoming indebted in any manner or for any purpose to any amount in the aggregate, excluding existing indebtedness, exceeding four per centum on the value of its taxable property within such corporation,” is a question which does not militate against the validity of the act itself, nor does the demurrer raise the latter question, inasmuch as the complaint set forth that the cost, damages, and expenses to be incurred under the ordinance authorizing the improvement were not to be paid by the city, but, as authorized by the act of March 18, 1897, were to be defrayed by special assessment upon the property to be benefited by the improvement.
Counsel for appellant further contend that the complaint was insufficient in that it did not set forth that the improvement contemplated wás a public use, and that there existed a necessity for the taking of the property sought to be condemned. What constitutes a public use is a question of law. The legislature, in the act quoted, specifically recognized the improvement of a street for the benefit of the public and for the betterment of its means of travel and transportation to be such a use. The question of the necessity for the taking of property for such use is one of fact. Paragraph 2451 of the Revised Statutes of 1901 provides that, before property can be taken in condemnation, it must appear that the use to which it is to be applied is a use authorized by law, and that the taking is necessary to such use. In paragraph 2454, Id.,
The supreme court of Montana, in the case of the City of Helena v. Harvey, 6 Mont. 114, 9 Pac. 903—a case analogous to the one at bar—said: “The law expressly requires that, before the district court can condemn property for public use, the right to do so must appear and be stated in the complaint. When required to be alleged, it must be proved, unless admitted. By providing that the right to take property for public use is founded upon a use authorized by law, and that the use for such purpose is necessary, the law itself recognizes the fact that a mere taking for a use authorized by law is not conclusive that the taking is necessary for such use. The district court was asked to condemn this property. It could only do so when the requirements of the law authorizing such condemnation were complied with. This was not done until the necessity for the use was averred and proved. ’ ’ The complaint in this case contained no averment that the taking of appellant’s property was necessary or required for street purposes. The ordinance of the city set up in the complaint in the action contained no finding- that the public use required the condemnation of appellant’s property. Had the ordinance contained such finding, there is authority to sustain the proposition that the recital of such ordinance and such finding would be sufficient allegation of the necessity of the taking without further averment in that behalf. City of Los Angeles v. Waldron, 65 Cal. 283, 3 Pac. 890. The demurrer should, therefore, have been sustained to the complaint upon this ground.
Judgment of the court below is reversed, and the cause remanded for further proceedings.
Kent, C. J., and Doan, J., concur.