In re Application of Forsstrom

• Decision Date: 07 December 1934
• Docket Number: Civil 3566
• Citation: 38 P.2d 878,44 Ariz. 472
• Parties: In the Matter of the Application of WILLIAM FORSSTROM and LUELLA B. FORSSTROM, His Wife, for a Writ of Prohibition
• Court: Arizona Supreme Court

38 P.2d 878

44 Ariz. 472

In the Matter of the Application of WILLIAM FORSSTROM and LUELLA B. FORSSTROM, His Wife, for a Writ of Prohibition

Civil No. 3566

Supreme Court of Arizona

December 7, 1934

Original proceeding for a writ of prohibition by William Forsstrom and his wife forbidding the superior court of Pima county from proceeding with a certain action between the city of Tucson as plaintiff and petitioners and others as defendants.

Alternative writ of prohibition quashed.

Mr. Ben C. Hill, Messrs. Mathews & Bilby and Messrs. Darnell & Nave for Petitioners.

Mr Thos. J. Elliott, City Attorney, Mr. Edward P. Cline and Messrs. Knapp, Boyle & Thompson, for Respondents.

Mr Arthur T. La Prade, Attorney General, and Mr. J. R McDougall, Assistant Attorney General, Amici Curiae.

OPINION

LOCKWOOD, J.

This is an original petition in this court on the application of William Forsstrom and Luella B. Forsstrom, his wife, hereinafter called petitioners, for a writ of prohibition forbidding the superior court of Pima county from proceeding with a certain action pending in said court, being No. 15750, between the city of Tucson, a municipal corporation, as plaintiff, and petitioners and various other parties as defendants, which action is for a condemnation of certain easements of ingress and egress belonging to the lands owned by petitioners, to the extent that said easements will be taken by the construction of a certain subway and the necessary regarding of North Stone Avenue and East Sixth Street in said city of Tucson. The alternative writ was duly issued, and the matter is before us now on the return thereto.

The question is solely one of law, and the facts may be briefly stated as follows: The main tracks of the Southern Pacific Railroad cross North Stone Avenue near such intersection of Sixth Street at the present grade of said avenue. The properly constituted authorities of the city of Tucson, believing that such grade crossing is a menace and hazard to public travel on the street, determined to abolish it by the construction of an underpass or subway below the tracks, and in pursuance thereof adopted resolution No. 1329, declaring the present grade crossing to be a dangerous hazard to vehicle and pedestrian traffic on North Stone Avenue, and authorizing the elimination of the crossing by means of an underpass, to be constructed under the provisions of the National Industrial Recovery Act (48 Stat. 195) and in accordance with an agreement entered into between the state of Arizona and the city of Tucson. Certain plans and specifications prepared by the state highway engineer were adopted as the official plans, specifications, and drawings for the underpass, and the city attorney was authorized and directed to bring such proceedings by way of eminent domain as were necessary to condemn property required by the construction of the underpass. Petitioners are the owners of certain real property abutting on Stone Avenue and Sixth Street which will be affected by such improvement through a changing of the grades of Stone Avenue and Sixth Street, which will make ingress and egress to their premises more difficult.

There are several other matters which we will refer to as necessary, but the propositions of law upon which petitioners base their main argument in their application for the writ may be stated in their logical sequence as follows: (a) Section 17, article 2, of the Constitution of Arizona, which reads in part as follows: "Section 17.... No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner,..." prohibits the taking or damaging of private property for public use until just compensation is made to the owner; (b) this section of the Constitution above quoted is not self-executing, but requires legislation to put it into effect; (c) the only provisions of the statutes providing a method for exercising the right of eminent domain are found in chapter 23 (section 1329 et seq.), Revised Code of 1928; (d) this chapter refers only to the "taking" of property, and provides no method of ascertaining the compensation for "damaging" property; (e) the proposed action of the city is not a "taking," but is a "damaging," of petitioners' property. We will consider these propositions of petitioners in their order. A mere examination of the Constitution and statutes shows (a) and (c) to be correct, and (b) has been determined in Inspiration Con. Copper Co. v. New Keystone Copper Co., 16 Ariz. 257, 144 P. 277. We next consider whether chapter 23, supra, applies to the "damaging," as well as the "taking," of property.

Our legislature first dealt with the subject of eminent domain in the Code of 1887. Title 22 of that Code covers the subject and defines eminent domain as being "... the right of the people or government to take private property for public use...." (Italics ours.) And the entire chapter mentions solely the "taking" of property; no provision appearing for providing compensation where property was damaged without being taken. In the Code of 1901, title 21 (paragraph 2444 et seq.) was devoted to the same subject and the definition thereof again referred only to the "taking" without mentioning "damaging" of property, and the procedure set forth in the chapter, although going somewhat more into details in regard to the purposes for which the right might be exercised, still referred only to the taking. Until February 14, 1912, the territory of Arizona was subject entirely to the will of Congress and the limitations of the Federal Constitution. Territory v. Blomberg, 2 Ariz. 204, 11 P. 671.And, so far as eminent domain was concerned, the only limitation on the legislature was the Fifth Amendment to that Constitution, which does not require compensation for the "damaging" of property, but for the "taking" only. When Arizona was admitted to statehood our Constitution forbade either the "taking" or "damaging" of property. But, notwithstanding this addition of the word "damaging" in the Constitution, the definition of eminent domain in the first state Code of 1913 (paragraph 3071 et seq.) is again found in the same language as in the Codes of 1887 and 1901, and all provisions in the chapter referring to the procedure for exercising the right again mention only a "taking" and not a "damaging" of property. In the Code of 1928 for the first time eminent domain is not defined, and there are a number of consolidations and shortenings of the provisions of the previous codes. Nowhere, however, is there anything set forth therein which would lead us to believe that it was the intention of the legislature to add anything to the nature of the right as previously established, and we think that, following our previous constructions of the 1928 Code, we must assume that the law as it existed previously to the enactment of that Code was not changed in substance, since it does not expressly appear that any change was intended. In re Estate of Sullivan, 38 Ariz. 387, 300 P. 193. We hold, therefore, that, whether through inadvertence or intention, the legislature has failed to provide any method for assessing the compensation due for the "damaging" of property as distinct from its "taking" under eminent domain, and that since, under the constitutional provision above quoted, it may not be so damaged without compensation having been first ascertained and paid, if the action of the city is a "damaging" of petitioners' property, as distinct from a "taking," there is no method set forth in our statutes by which such damage may be ascertained, and the right may not be exercised until the legislature has acted.

We come then to the question as to whether the proposed action of the city of Tucson, in so far as it affects petitioners at all, is a "taking" within the meaning of the statute.

Eminent domain is the right and power of a sovereign state to appropriate private property to particular uses, and it embraces all cases whereby under the authority of the state the property of the individual is appropriated permanently without his consent, for the purpose of being devoted to some particular use for the public good. This right is an inherent one which pertains to sovereignty as a necessary, constant and unextinguishable attribute, and constitutional provisions in regard to it do not create or grant the power, but are limitations thereon. But the right has always carried with it, even in the absence of constitutional limitations, the principle that in some manner and to some extent compensation must be made for its exercise.

In order that we may understand the better what is meant by a "taking" of property, we should have a clear knowledge of what property really is. The word is used at different times to express many varying ideas. Sometimes it is taken in common parlance to denote a physical object, as where one says an automobile or a horse is his property. On careful consideration, however, it is plain that "property" in the true and legal sense does not mean a physical object itself, but certain rights over the object. A piece of land in an unexplored and uninhabited region which belongs to no one does not necessarily undergo any physical change merely by reason of its later becoming the property of any person. A wild animal may be exactly the same physically before and after it is captured, but, when it is running free in the forest, no one would speak of it as property. We must therefore look beyond the physical object itself for the true definition of property. Many courts and writers have attempted to define it, using different words, but meaning in essence the same thing. One of the great writers on jurisprudence says:

"Property is...