dissenting.
I dissent from the portion of the court’s opinion dealing with the “valuation of land taken.” At 162-164, 741 P.2d at 295-297.
The court holds that the strip taken may be valued as a separate, independent parcel with a highest and best use for gas station or fast food outlet purposes. In so doing, the court violates the concept of “just compensation” as defined in a series of well-reasoned Arizona cases and adopts a system of valuation supported by neither logic nor common sense.
The object of the valuation process in eminent domain is to make the owner whole, not to permit him to make a profit from the condemnation proceedings. Defnet Land & Investment Co. v. State ex rel. Herman, 103 Ariz. 388, 389, 442 P.2d 835, 836 (1968); Tucson Title Insurance Co. v. State ex rel. Herman, 15 Ariz.App. 452, 455, 489 P.2d 299, 302 (1971). Obviously, the value of the land after the taking plus damages should equal the value of the land before condemnation. Id. Under the facts of this case, valuing the land taken as if it had a special commercial use not shared by the rest of the property compensates the landowner for something that was never taken and for rights that the owner still possesses.
Buchanan owned a five-acre rectangular tract with 330 feet fronting on 32nd Street in Yuma. As acknowledged by the majority, “the five-acre parcel was flat, undeveloped acreage, physically homogenous throughout.” At 161, 741 P.2d at 294. The state took a strip of land 80 feet deep to widen 32nd Street. Thus, before the condemnation, Buchanan had 330 feet of frontage on 32nd Street with a depth of approximately 560 feet. After the taking, he still will have 330 feet of frontage on 32nd Street but with a depth of approximately 480 feet. According to Buchanan’s appraiser, a 330 foot by 80 foot parcel with frontage rights was suitable for use for strip retail businesses and therefore was worth $5.00 per square foot. This, he said, was a higher square footage value than the average value of the entire homogeneous parcel. This so-called theory was allowed to go to the jury. As a result of the majority’s affirmance, the state will pay Buchanan the “value” of his frontage rights.
What the majority overlooks, however, is that no frontage rights were taken. After the taking, Buchanan still will have 330 feet of frontage on 32nd Street. That frontage still will have the same use which Buchanan claims was acquired by the state. Where is the logic in paying the owner for commercial frontage retained by the owner? The majority argues that the. strip taken had an independent value if sold" on the market. They are wrong. What Buchanan “sold” to the state is much different than what he would have sold on the market. If Buchanan had sold the same strip of land to a private buyer for $5.00 per square foot, he would have conveyed *167his frontage rights and there would be a private owner between his remaining property and 32nd Street. In contrast, the strip that the state condemned was not frontage, it was only part of a tract of land that had, and still has, frontage on 32nd Street. By the magic of the majority’s valuation process, Buchanan has been paid for the taking of valuable commercial frontage, but still has the same frontage and will profit from the same commercial value.
Such a result defies common sense and is directly contrary to well-established Arizona law.
“[I]n the ordinary highway widening situation the right of access is not taken by the condemnation and the front portion is not devoted to a use that impairs the access of the back portion—on the contrary, it is converted to a use which leaves all of the right of access attaching to the back portion____”
So, in a street-widening case, if one considers the front portion taken as a separate entity, with full access rights to the street, and the rear portion as a separate entity, with full access rights to the street, we are considering nonexistent things. Hence [in cases that recognize such theories] it is no wonder that juries are presented with such variations in testimony that it is difficult to comprehend that the testifiers purport to be members of a common profession. Tremendous variations in verdicts thus result, making eminent domain litigation an attractive game of chance for those armed with the more imaginative and persuasive professional witnesses.
Deer Valley Industrial Park Development & Lease Co. v. State ex rel. Herman, 5 Ariz.App. 150, 156, 424 P.2d 192, 198 (1967) (quoting Frenel v. Commonwealth Department of Highways, 361 S.W.2d 280, 282 (Ky.1962)).
In Deer Valley, the court held that the so-called frontage taken from a parcel abutting a street-widening project had no special value as such and must be valued as part of the whole, unless the part taken had some special physical feature that actually gave it a special value. Deer Valley teaches—as logic requires—that when a strip of land is taken for street widening and frontage rights are not disturbed, it makes no difference whether the land is taken from the front or the rear of the parcel; the practical effect is only that the lot is reduced in depth. Land may be taken along the “front,” but no frontage is actually taken.1
This view is supported by well-established precedent and by the leading commentator. E.g., Defnet, 103 Ariz. at 390, 442 P.2d at 837 (“ordinarily in a tract of this size the [land] to the rear would be promoted to frontage ... and thus there would be no actual loss in commercial acres”); City of Los Angeles v. Allen, 1 Cal.2d 572, 36 P.2d 611 (1934);2 In re Fourth Avenue in City of New York, 255 N.Y. 25, 173 N.E. 910 (1930), cert. denied, 283 U.S. 860, 51 S.Ct. 653, 75 L.Ed. 1465 (1931); City of Grand Rapids v. Barth, 248 Mich. 13, 226 N.W. 690 (1929); Frenel, supra; 5 J. SACKMAN, NICHOLS, THE LAW OF EMINENT DOMAIN § 16.1012 (rev. 3rd ed 1985 and Supp.1987) (summarizing partial takings cases). See generally Annot., 64 A.L.R. 1513 (1930).
Until today, this court has recognized that it is only when the part taken “ ‘is the most valuable part of the tract considered from a qualitative point of view’ ” that it should be valued at a separate, higher figure. Defnet, 103 Ariz. at 390, 442 P.2d at 837 (quoting 4 NICHOLS, EMINENT DO*168MAIN § 14.231, at 545 (3rd ed.)) (emphasis added). Indeed, even the case cited by the majority to support its valuation theory, Arizona State Land Department v. State ex rel. Herman, 113 Ariz. 125, 547 P.2d 479 (1976), does not stand for the proposition that part of a homogeneous tract under common ownership may be valued separately from the rest of the tract. In an opinion written by the author of today’s . decision, it holds that computing the ratio of the part taken to the value of the entire tract
requires that the part taken be compared to the remaining tract in order to identify whether the two units of land contain any distinctly different qualities, e.g., [physical] characteristics, which may re- ' suit in the part taken having a greater or smaller per [unit] value than the part not taken, [citing cases] ... The value of the part taken may then be determined by applying this ratio to the value of the entire tract.
113 Ariz. at 129, 547 P.2d at 483. In 1987, the majority has changed what it said was good law in 1976. It should at least tell us why the law has changed.
According to logic and precedent, the property taken in this case should not have been valued separately. It is part of a homogeneous piece; there is no qualitative difference between it and the rest of the parcel; and no frontage rights have been taken by the state or lost by the owner. Buchanan is being paid for something that was not taken.
I dissent.
. This can be illustrated easily by simply switching the location of the taking in this case. Suppose, for instance, that the city had widened the noncommercial street in back of the parcel and taken a strip 330 feet by 80 feet. Certainly the strip taken would not have been valueless simply because it had no frontage rights. The fact of the matter is that it had as much frontage rights as any other part of the parcel—it shared in the overall value resulting from those rights. There is no difference in value of the part taken, whether the city takes the widening strip from the front or the rear. In either case, the landowner has lost no commercial frontage.
. The California statutory provisions under which Allen was decided are the origin of our own statutes. See A.R.S. § 12-1122 (historical note); Deer Valley, 5 Ariz.App. at 156, 424 P.2d at 198.