Section 10.2A An Overview

• Library: Eminent Domain 3rd Edition 2013

In 1934 the Arizona Supreme Court decided In re Forsstrom, 44 Ariz. 472, 38 P.2d 878 (1934), which addressed a wide range of issues arising out of the City of Tucson’s condemnation of certain easements of ingress and egress resulting from a change in grade of the existing street adjacent to the owner’s property. The Supreme Court held that all lots abutting a public street have a right of access thereto, which is a property right protected by Article 2, Section 17 of the Arizona Constitution. The Court also held that changing the grade of the street so as to impair that easement of access constituted a taking under Article 2, Section 17. However, the Court held that the taking of an easement for access was not compensable under the Arizona Constitution because the law “presumes” that when a street is first designed and land is taken or dedicated by the owner, the compensation to which he is entitled is not only for the land taken but also for any further taking of the easement of access which may be made necessary by subsequent changes in grade of the street. The Court commented that the owner would have known that circumstances requiring a change in grade could occur, and that the owner would have considered that possibility in the course of claiming his just compensation or making his dedication.

The...