Section 3.5 Private Ways-of-Necessity

• Library: Eminent Domain 3rd Edition 2013

Arizona recognizes condemnation by private individuals or corporations for specified uses. The Arizona Constitution states that “[p]roperty shall not be taken for private use, except for private ways-of-necessity, and for drains, flumes, or ditches on or across the lands of others for mining, agricultural, domestic or sanitary purposes.”

Arizona Constitution, Article 2, Section 17

In 1914, the Arizona Supreme Court held that the power to condemn for a private use lay dormant until the legislature authorized the use, designated agents, and prescribed the purposes and extent of the use.

Inspiration Consol. Copper Co. v. New Keystone Copper Co., 16 Ariz. 257, 144 P. 277 (1914)

The Legislature proceeded to adopt a statute in 1919 that defines a private way-of-necessity and specifies who may condemn, for what purposes, and with what restrictions.

A.R.S. §§ 12-1201 and 12-1202

One who owns or has a beneficial use in land that is “land-locked” may bring an action pursuant to A.R.S. § 12-1202 to condemn a private way-of-necessity across the land of another. Although the private party bringing the action enjoys the direct benefit of the new access, the state as a whole actually benefits as well. Such an action promotes the development of the state’s resources, and prevents a private individual from bottling up and rendering ineffective a portion of the state’s resources.

Solana Land Co. v. Murphey, 69 Ariz. 117, 210 P.2d 593 (1949)

Cienega Cattle Co. v. Atkins, 59 Ariz. 287, 126 P.2d 481 (1942)

When a private way-of-necessity is a roadway established under the condemnation statute, it becomes an open public way which may be traveled by any person who desires to use it. Hence, the term “private way-of-necessity” is really a misnomer.

Solana Land Co. v. Murphey, 69 Ariz. 117, 210 P.2d 593 (1949)

One need not show an absolute necessity; a reasonable necessity is sufficient. Necessity does not mean no outlet; rather, it means no adequate, convenient, or reasonable...