Section 10.2B A Chronology of Arizona’s Access-Limitation Cases

• Library: Eminent Domain 3rd Edition 2013

In light of the change in standards over time as to how to compensate for an impairment or destruction of access, the Arizona cases dealing with that issue are listed in chronological order:

Mosher v. City of Phoenix, 39 Ariz. 470, 7 P.2d 622 (1932) (a change in grade of a street which injuriously affects an abutting property is a “damage” under Article 2, Section 17 of the Arizona Constitution, and is compensable; the measure of damages is the difference between the before and after values of the abutting property)

In re Forsstrom, 44 Ariz. 472, 38 P.2d 878 (1934), overruled in County of Mohave v. Chamberlin, 78 Ariz. 422, 281 P.2d 128 (1955) and in State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 350 P.2d 988 (1960) (a change in grade of a street which injuriously affects an abutting property is a “taking” of property, i.e., the easement of ingress and egress, under Article 2, Section 17 of the Arizona Constitution; however, no compensation is appropriate under the Constitution because of a presumption that when the property was first acquired for a street, the compensation included damages for subsequent changes in the grade of the street)

Grande v. Casson, 50 Ariz. 397, 72 P.2d 676 (1937) (no cause of action stated for a taking of access resulting from a change in grade in the adjacent streets, per In re Forsstrom)

State ex rel. Sullivan v. Carrow, 57 Ariz. 434, 114 P.2d 896 (1941) (loss of value in a property as a result of a new highway alignment which bypasses the property, leaving the property on an old highway with minimal traffic exposure, is not compensable; this is so in spite of the owner’s reliance on representations of State officials as to where new highway would be located in the owner’s decision of where and when to construct business improvements)

Pima County v. DeConcini, 79 Ariz. 154, 285 P.2d 609 (1955) (with no substantive discussion other than how to address cost of cure evidence in a severance damage case, this opinion applies a before and after measure of damages for the taking of access resulting from a street widening and the construction of a ditch)

State ex rel. Morrison v. Thelberg, 86 Ariz. 263, 344 P.2d 1015 (1959) (this first opinion in the Thelberg case applies the In re Forsstrom presumption of compensation for loss of access and instructs the court and witnesses, when they try the remanded case, to assume that in the after situation, the owner still had the same direct ingress and egress to the main highway as in the before situation, in spite of the fact that the new highway would be constructed 22 feet above the adjacent property)

State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 350 P.2d 988 (1960) (this second opinion supersedes the first and overrules In re Forsstrom insofar as it held that the destruction or substantial impairment of an abutting owner’s right of access to a highway is noncompensable, due to a presumption of payment already made; the opinion holds that the easement of ingress and egress to an abutting highway is a property right which cannot be condemned without just compensation; that the measure of damages is the difference between the before and the after values of the remainder, in light of their respective highest and best uses, before and after; and that the provision of new access in the after situation, such as a frontage road, etc., may be considered as a mitigation of damages, but not as a defense to the taking)

Pima County v. Bilby, 87 Ariz. 366, 351 P.2d 647 (1960) (this case was decided three weeks after State ex rel. Morrison v. Thelberg; the inverse plaintiff sought damages for loss of access and drainage damage as a result of a change in grade in the...