dissenting.
I respectfully dissent. I would affirm the judgment of the trial court.
The case at bar differs from the Schaffer and Tucson Title eases in that the City’s promises contained in the right of entry agreement were not the consideration for the taking of the easement. The right of entry agreement contemplates that just compensation would be paid for the easement at a later time, either through escrow or through eminent domain proceedings. Private negotiations evidently failed because the eminent domain proceedings were pursued. In those proceedings, the Dixons stipulated that the value of the easement interest taken was $14,000.00 and judgment was entered in their favor for that amount. In executing the right of entry agreement, the City did not forfeit the right it was acquiring in the condemnation to remove from the easement area all vegetation except grass. Damage outside of the easement area was beyond the purview of the condemnation but was still part of the project for assessing compensation.
The Dixons assert, and the majority agrees, that the proper measure of damages for the City’s breach of the right of entry agreement should be the cost to restore all of the destroyed vegetation because the agreement provides that the City will repair at its expense any damage caused to the Dixons’ property. The City does not dispute that it is responsible for all damages associated with the waterline project and that the Dixons are entitled to receive just compensation for the taking and all construction damage. However, the City argues that, notwithstanding the fact that there is a contractual element in this case by virtue of the right of entry agreement, the action is still one in eminent domain and the damages for breach of the agreement should be determined in accordance with eminent domain principles. The City therefore asserts that, under the just compensation procedures set forth in A.R.S. § 12-1122, the Dixons were only entitled to the market value of the easement interest taken, as well as severance damages, if any, in the amount of the difference between the fair market value of the remaining property before and after the taking. See State ex rel. Miller v. Filler, 168 Ariz. 147, 812 P.2d 620 (1991). Because there were no typical severance damages here since the loss of vegetation did not reduce the market value of the remaining property, I believe the Dixons were only entitled to the $14,000.00 they received for the value of the easement interest. The City claims that the right of entry agreement only resolved immediate possession but did not change the action from one in eminent domain to one in contract. I agree.
The City relies on State ex rel. Herman v. Schaffer, 105 Ariz. 478, 467 P.2d 66 (1970), and State ex rel. Herman v. Tucson Title Ins. Co., 101 Ariz. 415, 420 P.2d 286 (1966), in support of its argument that the “before and after” rule rather than costs to repair should be used to determine the Dixons’ damages for the City’s breach of the right of entry agreement. In Schaffer, the facts of which were discussed earlier, the state had argued that the proper measure of damages for its breach of the contract to maintain the crossovers was the value of the landowners’ right at the time the property was originally deeded to the state. The court stated that this rule of retroactive damages would “allow the state to speculate in land values to the detriment of the property owners” and held, therefore, that the proper measure of damages was “before and after” damages, with the market value of the land with access by crossovers as the before condition and the market value of the land following the elimination of the “crossovers” as the “after” condition. 105 Ariz. at 486-487, 467 P.2d at 74-75. Similarly, the court in Tucson Title held that the measure of dam*624ages for the state’s breach of its agreement to construct an interchange in exchange for the taking of some property was the value of the property owner’s remaining property, assuming the interchange was constructed, as the “before” situation, less the value of the property without such interchange. 101 Ariz. at 416-17, 420 P.2d at 287-288.
The “before and after” measure of damages was used in the Schaffer and Tucson Title cases, which, like the case at bar, both involved the breach by a governmental entity of a contractual obligation made to property owners in an eminent domain situation. I would hold that the Dixons are not entitled to recover from the City the reasonable costs of restoring the destroyed vegetation on that portion of their property not located within the easement area since the value of the property remained unchanged.
The right of entry agreement did not limit the City’s eminent domain power. The easement rights which the City condemned included surface use restrictions that prohibit all vegetation within the easement area other than grass. Therefore, the destroyed vegetation within the easement area cannot be replaced and the Dixons should not recover the costs of restoring vegetation to that area.