Filler v. City of Minot

Thom, Jerry W. FILLER and James Indi-

vidually, Inc., Sports, and Action Corporation,

North Dakota Plaintiffs Appellants, MINOT, municipal corpo-

The CITY OF

ration, Dakota, State of North Hjelle,

Walter R. Com- Dakota,

missioner North Defendants Appellees.

Civ. No.

Supreme Court of North Dakota.

June McCutcheon, Kerian, Schmidt,

Bosard, Minot, Rau, plaintiffs Holum & Kerian, Mi- argued by Jon R. appellants; not. Nodland, Conmy, Rosenberg,

Lundberg, Bismarck, Schulz, for defendants Lucas & Pantaleo, Peter appellees, argued by S. Bismarck.

SAND, Justice. (landowners) appealed plaintiffs the district court dis- judgment action missing “inverse condemnation” their of North Dakota and against the State (State). The landowners had City of Minot damages for the al- sought consequential the market value of leged diminution arising from the construction their south of intersection of a controlled-access that, as court concluded Minot. The district business, loss of a matter of loss' nuisances al- traffic, visibility, and were by the landowners legedly suffered compensable, After and also that access to the elimination of the access be- landowners’ was reasonable. We tween the service Highway road and part reverse in and remand. means of access to the tract is a road Highway 350 feet west of 83 which The landowners owned commercial portion portion intersects with a aof erty located south of the former intersec- Highway old bypass. and 62 To reach the tion of 83 and the 2 and subject tract it necessary to travel 160 bypass. They purchased 52 property the in intersection, feet south from this east 250 1971 and since that time have rented it to feet, again and then south another 300 feet. Inc., Sports, Action corporation by a owned the landowners which sells recreational ve- The landowners commenced an inverse hicles and boats. against condemnation action the by State filing a complaint April summons and on 6 1961, 83, Highway Prior to which runs partial 1978. The moved State for summa- through Minot, north and south was a two- ry judgment and on 19 July 1978 the dis- highway lane located within the 66 feet of granting trict court entered an order the right way. subject section line The order, State’s motion. As the basis for the erty fronted Highway the west side of 83 the district court stated that “loss of busi- and was Eighty-Three Corpo- owned the ness, traffic, loss of visibility, and 1961, plans ration. were carried out to allegedly nuisances suffered” the land- portion convert a Highway 83 into a were, owners as a matter of not com- four-lane highway. controlled-access In or- pensable. der to execute plans, those the State acquired North Dakota Eighty- from the A trial August was held 24 1978 on the Corporation Three a strip proper- 30-foot access, judgment issue of after which ty subject across the front of the tract for dismissing filed the landowners’ action. access control and construction of a front- appealed The landowners judg- this age right road. The of way plat filed ment. Highway Department the initiating this ac- (1) The issues we must determine are:

quisition points indicated three of access partial summary judgment proper- Was the between Highway the service road and 83 granted, (2) ly and Did the landowners suf- vicinity subject the property; one injury fer compensable as the result of located 300 feet north of property, the subject the alteration of access from the second proper- located 875 feet south of the tract. ty, and a third located feet still further sought compensation The landowners for south. the loss of access between their In 1976 the started State construction of abutting public highway. and the partial a new cloverleaf intersection of Highway 83 Highway and the right and 52 A owner’s of access bypass. The new intersection abutting was located to an or street has been just subject south of the property. High- recognized by this court. Chandler v. raised, widened, (N.D.1964); 83 was Hjelle, and carried 126 N.W.2d 141 Cum Minot, across bypass by the and 52 mings City v. 67 N.D. overpass. means of previously The men- King County, N.W. 421 Stark points (1936). tioned of access between prop the service N.D. 266 N.W. 654 Such however, road and Highway right, 83 were closed and all entitle the erty does not properties the a distance of 2000 feet and all landowner to direct access subject south of the acquired by points subject property tract were and the between for the highway. State construction of clover- The in the exercise of its regulations leaf. The police powers, may impose is now located on and cul-de-sac, restrictions, the distal end of a prevent the service access at cer even extending road points, to the south of the tract such control is done in tain where having Thus, safety. been removed. while public the interests of position took the that when has a of access to an ad- State

an abutter acquired Eighty-Three Cor- joining highway, right is access such poration 1961 for the construction superior King the state. interests of facility, it also controlled-access County, supra. In situations where Stark statutes, right, to sub- under above regulations restrictions and been im- points alter or eliminate access owners, sequently posed upon access Al- along facility. the controlled-access not, question becomes one of whether or though way plat on file showed circumstances, under the and existing facts frontage three of access between a reasonable means of access remains. If the landowners’ the abutter has convenient free and access supple- argued ingress to his his means of relating plat ments do not filed the same egress substantially are not interfered having up show its given the State with, complaint. he has no cause See Thus concludes access control. the State States, Johnson v. 479 F.2d United right when access control acquired the of (1973); Balog Depart- Ct.Cl. Eighty-Three Corporation from it had the Roads, ment of 177 Neb. pow- right, police exercise in the of its 2A Nichols on Eminent Domain ers, to or amend access without alter such 6.444[2]; 4A on Nichols Eminent Domain § being damaging taking for the or of liable 14.2431; Annot. 42 A.L.R.3d § any landown- compensable interests of the 24-01-31 24- argued State §§ ers. 01-32, Code, Century North provide Dakota Although courts said that if have police power it with the ac- necessary to regulations or restrictions fall within the regulate quire and access on controlled-ac- compensable “police power” State’s no loss highways. provide, cess Those statutes occurred, always has the distinction is not part: pertinent of Minnesota clear. In the words Su “24-01-31. Design of controlled-access preme Court: facility. authorities of —The desig have that “While courts assumed state, any or county, municipality or are police nating regulation an exercise of design any authorized to so controlled-ac- power compensation by prevents eminent restrict, facility regulate, cess and to so pur proceedings, practical domain for prohibit or access as to best serve the poses simply way this is convenient facility for traffic which such intended. right describing which activities confer any right . No person shall pro damages to not. The which do to, ingress or egress or across .from limiting high or to a hibiting of access facilities to controlled-access or way police be an may well exercise lands, except at such designated designed power in the sense that it is to points may permitted, be which access promote safety, traffic at the but same upon may such terms and conditions be as injury may compensable time it cause specified from time to time.” owner.” Hendrickson v. “24-01-32. Acquisition property 436, 127 State, 267 Minn. N.W.2d high- rights.— . . . (1964). state, way any authorities of the or coun- ty, case, may acquire or municipality private In the facts this public right completely elim property rights acquire for controlled-ac- did not roads, facilities including subject cess and service inate between the tract and access access, air, view, rights lights, strip and such when the 30-foot of land advertising rights right outside of purchased and access control were may by as Eighty-Three Corporation be determined the com- in 1961. We interest, assume, missioner to public be in the must in either or an a settlement devise, gift, purchase, or con condemnation action in which access eminent domain record acquired

trol was and where the does otherwise, any frontage ages not indicate that change determined in market subject tract, adjacent road to the value, as well obviously that amount is affected any points access between frontage such mitigating points factors such as alternate abutting highway, road and the were relied of access as those factors will be contribu- upon mitigation damages for the loss ting any changes determinations in in mar- or modification of access. ket value. purchasing access control for a case, In this the modification of the front- project, the necessarily State does not ac age adjacent road the landowners’ quire indiscriminately alter or erty step was the two-step second of a eliminate access at future dates without impairment of the abutter’s of access. payment compensation, merely but pays step The first occurred in 1961 when damages suffered as the result of access way 83 was converted into a controlled-ac- alteration arising project. from that Be facility strip cess and a 30-foot cause a landowner has of rea for the construction of a sonable access to frontage his if a frontage road. Presumably, the owners of points provided, and access are it is compensated tract were possible following completion of a only for taken but also for project suffer only damages they sustained as the result of the nominal or compensable damages no as the alteration of access to 83. The result Where, however, of access control. step second occurred in 1976 when the ac- access control is subsequently modified to frontage cess between the road and the extent longer that access is no reasona Highway question 83 were closed. The now substantially unreasonable, ble or is more becomes one of whether or not the second the abutter has suffered a new injury for impairment was of such a nature as to which he has compensated never been and require compensation to landowners.1 is thus entitled to compensation at this later date. This court has stated a property damages owner is entitled arising to assumption that access to a property rights interferences with his of provided by frontage a road and ac- air, light, by and access caused the lawful cess frontage between a road and the improvement of a street in a manner which abutting highway mitigation are used in of could not reasonably anticipated have been damages is by opinions dictated earlier of street, time of the dedication of the this court that have indicated the measure damages damages of and for which been pre-existing for the loss of not ac- Minot, cess is waived. City the difference in market Kenner v. of 98 value imme- diately (N.D.1959); Cummings before N.W.2d 901 immediately City and after v. Minot, change. Sauvageau Hjelle, supra. access of v. We conclude the same 213 (N.D.1973); applies N.W.2d 381 rule Hjelle, Chandler v. when the has supra. State, Hurley See also v. property rights 82 interest in a landowner’s S.D. 143 N.W.2d 722 by Hendrickson v. not through means of a dedication but State, supra. Because the amount of dam- agreement either a settlement or an action question ing upon 1. A exists as to whether or not the the service road must leave and use adjacent prop- service road gain to the landowners’ other streets and roads to access to erty properly “frontage can longer be termed a road” 83. If this is no service road a since its frontage modification in 1976. longer part That term is road it is no a 24-01-01.1, NDCC, defined in Highway facility. § to mean: controlled-access 83 See “ Annuity Teachers Insurance and Association of auxiliary . . .a local street or road Wichita, City America v. 221 Kan. and located on the side of an arterial (1977). Consequently, P.2d 347 the 1976 modi- abutting property adjacent for service to and frontage fication of the merely road not have been areas and for control of access.” provide an alteration of access between sub- The service this case will not ject Highway actually a direct access tract and 83 but com- between the tract and Highway plete Abutting property the two. enter- elimination access between owners findings of are considered quence and thus If a landowner’s in eminent domain. County v. Coal Slope lawful Consolidation rights by with a fact. erty are interfered Company, supra. in a man- improvement of a street or road reasonably ner could not have been that duty of it was the this case anticipated at the time of condemnation been a if there had court to determine trial settlement, is entitled or landowner rise giving aof disturbance damages arising from such interference. damages. previously dis As to a claim of of whether or The determination cussed, a property had the landowners damaging of taking a or there has been Highway 83 which of access to the con generally been private property has by first access-con was disturbed question a this court to be by sidered the modification project later trol and Heley, Association v. law. United Power the elimination frontage road and (N.D.1979); 277 N.W.2d 262 Guerard frontage road points between the access (N.D.1974). The tri N.W.2d 525 ques It then became if the claim required to conclude al court or land to whether not the tion of fact as damages arises because the distur was rea access owners’ new public private, right, bance of a either or not whether and if unreasonable sonable in connection with enjoys which the owner reasonably antici were such modifications gives his it additional which Highway 83 was convert pated at the time value, he reason of such disturbance Only facility. ed to controlled-access respect special damage with has sustained cannot differ on when minds reasonable sustained to his excess they con of fact do become findings these As generally. United Power public court to decide. law clusions of re Heley, at 267. supra sociation v. Such Compa Slope County v. Consolidation Coal rules of law and quires application supra. ny, County Slope law.” “question thus court in conclu- Although the district its Company, Consolidation Coal to the stated “that access sions and is property was plaintiffs’ [landowners’] reasonable,” as a we nevertheless treat it instance, a trial In the usual once Jacob, 233 finding Jahner v. of fact. right has been private court determines a (N.D.1975). N.W.2d 791 disturbed, remaining only function the fact assess the level of the finder of is to fact we reviewing findings of In damages. v. He Power Association United of clearly rule by the erroneous are limited ley, supra 267. cases such as the one In of Civil 52(a), North Dakota Rules Rule us, however, question a before where exists Procedure, such will overturn however we a not of whether or not when, reviewing findings the entire after but also whether has been interfered with evidence, are left with definite we not was such interference unreasonable been that a mistake has firm conviction contem and if whether or not within the so Elmer, 210 N.W.2d re Estate of made. In parties at the time of an plation of the reviewing the record (N.D.1973). After duty of acquisition earlier it becomes the definite case, are left with such a in this we deter the to make these latter fact-finder and firm conviction.2 State, supra. These minations. Guerard new construction of the by way of rea are drawn Prior determinations point Highway interchange, as dis an access the evidence sonable inference from of north conse within 300 feet the tinguished legal effect or was located its findings labeled judge in the of fact and the with labeled the was familiar the this case finding which, reality, However, in is a of law the conclusion and the road network. support a find- give not regard fact. The evidence does court rule of law of ing did not due the regarding was reasonable. of fact that access of access to the the landowners’ apparently abutting highway and this reflected Considering circuity the subject property and within 875 feet to travel to the tract, subject reach property’s loss property. of the After construc- the south patronage, of the tion, subject diminution value of the service and the fact the service road on longer tract no has access subject longer tract no has 83, point has one access onto but rather direct access to we conclude bypass, 2 and 52 a distance of finding in the district court was in error To reach 710 feet from the tract. landowners’ access was reasonable. Ac subject property from the one Highway 83 cordingly we reverse. approxi- must take a circuitous route Although feet. the trial court mately 1060 remand, finding by On the trier of fact ruling circuity was correct in that of travel must be made as to whether or not the itself, not, compensable item in of dam- resulting modification of access ages, it is a factor to be considered construction of the new intersection was determining reasonableness of contemplation access. one within the reasonable State, supra. Guerard v. parties See when the State strip 30-foot and the patronage may find loss of We also access control in If the recent modifi- be an indication of unreasonableness of ac reasonably contemplated by cation was not (loss although patron such evidence cess parties finder must the fact with caution it age) must be received of the also make a determination level may be attributable to factors other than compensable damages arising therefrom. the level of traff unreasonableness. Where granted Before the district court trial abutting highway, ic3 on the as in this summary judgment partial motion for case, but the appears to remain the same ground against the landowners on the patronage subject property has de traffic, business, loss of loss of visi- materially creased since construction of the allegedly bility, and nuisances suffered improvement, patronage may the loss of be were, as a matter of the landowners evidence indicative of unreasonableness of compensable. pro- We now review the State, supra. access. Hendrickson v. See priety granting that motion. Burleigh County, also Little v. Although we have stated evidence loss of traffic be of loss of business and that a admissible to establish Also indicative of unreasonableness damaged, well settled that has been is diminution in the value of the landown compensa- such losses are not in themselves property resulting er’s from the alteration judgment on Accordingly, summary ble. States, supra. access. Johnson United granted. James properly those issues expert The landowners’ witness testified City v. Plumbing Heating Co. town & change that as a result of the in access in Jamestown, 355 case, highest and this tract’s longer granted par best use was no that of a retail also The district court judgment against wholesale or the land summary establishment but rather as a tial they alleged consequently claim which warehouse establishment and owners’ nuisance property to their was had suffered a decrease in market value of resulted when access period time $49,150. for a completely cut off abutting Although its valuation as commercial and therefore an owner has no interest obligation erty. highway, no While the State is under in traffic flow over the this does not past using traffic the landowner’s mean that if traffic is abutting send long pass may profit are If as the the landowners owner from its flow. traffic does formerly to it in common travelers who were attracted to the entitled to avail themselves Wilson, place landowner’s of business not find their owners. State v. do with other access, 760, 194, to the 134 because of lack of P.2d 42 A.L.R.3d 103 Ariz. 438 manifestly (1968). it is the alteration of access which patronage, resulting profits, has reduced the 244 adjacent highway. Al the traffic from the of the new intersec-

during the construction landowners court has allowed tempo- though this argued that such tion. The State view loss of the compensation for compensable. We disa- injury is not rary to extend property, we decline in from their general rule as stated gree adopt compensable principle to create Domain Eminent § 2A Nichols on 6.4442[2]: abutting highway. to be viewed from during so obstructed “When a street is those position Rather we follow public work that of a the construction that there is no com- that have held courts wholly cut abutting property is access to from an pensable right to be seen off, injury tem- the fact that Lock, 560 468 S.W.2d highway. State be no reason porary generally held to Theatres, Inc. v. (Tex.Civ.App.1971); Acme compensation. denying for the owner 496, 385, 258 310 N.Y.S.2d 26 N.Y.2d However, access, though rendered when Commonwealth, Depart (1970); N.E.2d 912 inconvenient, wholly is not difficult and Strahan, 431 Highways v. S.W.2d ment of off, .compensa- the owner is denied cut City Kansas v. Berkshire (Ky.1968); 871 even if there is such an tion. This is so (Mo. 470 Company, 393 S.W.2d Lumber for injury to the use of the Wasserman, Contra, People v. 1965). during purposes the construction business 716, (1966); Cal.Rptr. 95 Cal.App.2d materially affect work as to of the 332, Berea, Op.2d 62 Ohio Bramson interests, this of the leasehold value (1971); Mur Misc. 293 N.E.2d Ohio of structures injury presence is due to the 292, 40 Westport, 1 Conn. v. Town of phy undoubtedly con- that would in the street Kelbro, 156 A.L.R. 568 A.2d compensation they if ground stitute a Vt. 30 A.2d Myrick, Inc. v. permanently. . maintained there were summary judg (1943). partial We conclude visibility was on the issue of ment granted. properly However, temporary if the “. . . landowners of this case the On remand unreasonable, is a result of obstruction to show the modification should be allowed arbitrary capricious acts unnecessary, property and between their of access charge or conduct the one reasonably anticipated way 83 was not construction, the abut- improvement or acquired by was the time access control action for ting has a landowner also The landowners should in 1961. damages resulting from such interference evidence on the issue present be allowed to property.” his with access to resulting temporary nuisance rule, the above-stated In accordance with property dur- of access to their elimination summary judgment improperly was partial intersection. ing of the new construction nuisance in this case granted on the issue of part and remanded. Reversed alleged access to where the landowners’ for a completely was cut off their ERICKSTAD, J., and C. PAULSON Al- during construction. period of time JJ., WALLE, concur. VANDE only temporary, though injury compensable injury and nevertheless was a PEDERSON, Justice, dissenting. grounds for a proper was not therefore try Filler did not present counsel for relief. The duration of complete denial of court without It was tried to the this case. the difference in the cut off make of evidence offered dur- jury. Every bit damages being or real. nominal Prior counsel then ing trial was received. permission requested alleged rested and has never The also dam landowners has concluded that change grade reopen. Justice Sand ages arising from the in the again opportunity Filler should resulting loss of visi 83 and a rea- property is not access to his show that bility between the traffic on the op- had that prior counsel They contend sonable. Filler’s subject property. and the testi- who owner, portunity produced witnesses they abutting property that as an in their was not reasonable being seen fied that access have a interest opinion. judge, being The trial the final

judge credibility, found that access to 52(a),

Filler’s is reasonable. Rule applies.

N.D.R.Civ.P.

Undoubtedly, present counsel would have tactics, perhaps

used different trial differ- witnesses, argument.

ent and different

But appeal is not our function on

provide an opportunity attorney for a new

in the case substitute new and different

theories unless there are unusual circum- Rummel,

stances. See Rummel v.

N.W.2d 230 I see no unusual

circumstances in this case. special findings

The of fact made judge

trial specific were clear and and dis-

close the basis for the conclusions of law judgment

and the that was entered. Al-

though may I not have made the same

findings of judge fact as were made

who heard the witnesses if I had been the judge,

trial I transcript have read the therein,

from all of the evidence I do not

reach a definite and firm conviction that judge trial made a mistake in

findings. judgment should be affirmed. ESTATE Matter

In the Halley NELSON. D. Bergquist, and Ruth BOONE

Esther Appellants, Plaintiffs/ NELSON, Halley D.

The ESTATE Defendant/Appellee. No. 9397-A.

Civ. Dakota. North

Supreme Court 18, 1979.

June Rehearing Denial on

As Amended 12, July

As on Denial of Amended Aug.

Rehearing

Case Details

Case Name: Filler v. City of Minot

Court Name: North Dakota Supreme Court

Date Published: Jun 18, 1979

Citation: 281 N.W.2d 237

Docket Number: Civ. 9576

Court Abbreviation: N.D.