Section 4.1 What Property is Subject to the Power?

• Library: Eminent Domain 3rd Edition 2013

Property in the true and legal sense does not mean a physical object itself, but certain rights over the object, such as the right to possession, use, and disposition of things in a manner not inconsistent with the law. Since property consists of not only tangible things, but certain rights in those things, when a person is deprived of any of these rights, he is to that extent deprived of his property. An owner may have some rights remaining, but he does not have the same property as he had before.

When real property is considered, one has not only the rights of use, possession, and disposition, but also at times other rights over contiguous and surrounding areas such as the right to support of soil, to light and air, to access, and the right to be undisturbed by nuisances on the adjoining property.

In re Forsstrom, 44 Ariz. 472, 38 P.2d 878 (1934) (overruled on other grounds in County of Mohave v. Chamberlin, 78 Ariz. 422, 281 P.2d 128 (1955) and State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 350 P.2d 988 (1960))

A.R.S. § 12‑1114 defines the types of private property which are subject to condemnation as follows:

Private property which may be taken includes:

1. All real property belonging to any person, including any and all water and water rights for the irrigation of any land condemned, belonging to or used in connection with the land for the irrigation thereof, with right of way for the water or water rights condemned through irrigating canals and ditches leading to the land condemned.

2. Lands belonging to the state, or to any county, city, town or village, not appropriated to some public use.

3. Property appropriated to public use.

4. Franchises for toll roads, toll bridges, and ferries, and all other franchises, but such franchises shall not be taken unless for free highways, railroads or other more necessary public uses.

5. All rights of way through canyons, passes or defiles, and all rights of way for any and all purposes mentioned in paragraph 2 of § 12-1111, and any and all structures and improvements thereon, and the lands held or used in connection therewith, intersected by any other right of way or improvements or structures thereon, which shall also be subject to a limited use in common with the owner thereof when necessary, but such uses, crossings, intersections and connections shall be made in the manner most compatible with the greatest public benefit and least private injury.

6. All classes of private property not enumerated, including property for use in water or water rights, taken for public use when the taking is authorized by law.

Pursuant to A.R.S. § 33-275, private conservation easements are also subject to the power of eminent domain, though the existence of such an easement shall not be considered a property interest for which compensation or damages may be awarded.

The cases discussed below distinguish between...