In re Forsstrom
In In re Forsstrom, 44 Ariz. 472, 38 P.2d 878 (1934) the City of Tucson condemned property along two streets which made the owners' ingress and egress more difficult because of a change of grade. Id. at 476, 38 P.2d at 880-81.
The court found the owners' claim of harm to their access did not fall within the scope of the damages clause but rather was "within the true meaning of the constitutional provision a taking of the property." Id. at 494, 38 P.2d at 887.
Partially overruling Mosher v. City of Phoenix, the court held that absent an express legislative provision for ascertaining damage arising from a change in grade, the right to compensation was not self-executing. Id. at 492, 38 P.2d at 886-87.
The court also concluded that payment of just compensation did not include "the changing of street grades," reasoning that when the streets were "first laid out, compensation was presumably made to cover, not only the original grades, but any changes which might at a later time be made therein." Id. at 489-92, 38 P.2d at 885-87.
The court qualified its holding, however, by recognizing that the legislature had adopted a specific statute requiring municipalities to compensate property owners for changes in the grade of a street or sidewalk. Id. at 492-94, 38 P.2d at 887.
Thus, the court held that the statute "does provide a method whereby the damage caused to abutting property owners on a street through the taking of any portion of their right to ingress and egress thereto may be assessed." Id. at 494, 38 P.2d at 887.