Chapter 6 WHAT IS A CONSTITUTIONAL “DAMAGE”?

• Library: Eminent Domain 3rd Edition 2013

The Arizona Constitution guarantees compensation not only to one whose property is taken, but to one whose property is damaged. Arizona Constitution, Article 2, Section 17 Early Arizona cases found that despite the constitutional provision of compensation for damage, none could be awarded in the absence of any physical taking without legislative authorization, procedure, or standards. See Section 1.4 above. This changed in 1955 when the Arizona Supreme Court held that the constitutional provision was self‑executing and that a constitutionally‑guaranteed right could not be negated by the failure or the refusal of the legislature to act. County of Mohave v. Chamberlin, 78 Ariz. 422, 281 P.2d 128 (1955) In Chamberlin, the Court likened the term “a damaging” to “a temporary taking,” and held that the plaintiff was entitled to amend her complaint and allege damages resulting from a temporary pollution of her well caused by drainage ditches which had been graded by Mohave County. County of Mohave v. Chamberlin, 78 Ariz. 422, 218 P.2d 128 (1955) Conduct which would be tortious if done by an individual is frequently held to be a taking and/or a damaging when done by the state upon an individual’s property. The Constitution refers to the interest invaded and not to the particular conduct leading to the invasion. State v. Leeson, 84 Ariz. 44, 323 P.2d 692 (1958) (flooding of land is compensable under eminent domain provisions) City of Yuma v. Lattie, 117 Ariz. 280, 572 P.2d 108 (App. 1977) (city liable in an inverse case for flooding damages) However, torts occurring after the commencement of condemnation proceedings are actionable as separate, non-condemnation claims. Dixon v. City of Phoenix, 173 Ariz. 612, 845...