State Ex Rel. Herman v. Southern Pacific Co. , 8 Ariz. App. 238 ( 1968 )

STEVENS, Judge

(dissenting).

I am unable to agree with the majority. In my opinion the judgment as to severance damage is highly speculative. The use of the right-of-way is no more difficult than the use of other segments of the appellee’s right-of-way. I cannot believe that had it been necessary to take a portion of the land, rather than restricting access, the appellee would have failed to produce evidence as to the value of the land taken.

The majority opinion sets forth the Arizona law that the measure of damages is the difference between the before value and the after value. Failing to produce competent evidence to meet this well-established test, the maximum recovery for severance damage would be nominal damages. I cannot consider $21,000 to be nominal. We often have situations in the civil law where the right of recovery is denied only because of inadequacy in the proof of damages.

Being in the minority, I express no views as to the appropriate trial court procedures which should hereafter be followed or whether this Court should undertake to determine and assess the nominal damages.