Section 3.4 What Is “A More Necessary Public Use”?

• Library: Eminent Domain 3rd Edition 2013

A.R.S. § 12‑1112(3) requires that if the property to be condemned is already appropriated to some public use, the public use to which it is to be applied is “a more necessary public use.”

The determination of which public use is the “more necessary” public use requires an examination of the two entities—the condemnor and the condemnee. If the particular public use is incidental to the basic purpose of the condemnee, the services are held to be a more necessary public use when offered by a municipality. For instance, service of domestic water is incidental to...