*1 44,137 No. Ray wife, Appellants, v. E. and Sadie Ray,
R. his Appellee. Kansas, Commission 278) (410 P. January 22, 1966.
Opinion filed Wichita, Harris, argued cause, Charles Weigand, W. and Lawrence Byron Brainerd, Curfman, Kaufman, Lawrence E. Orval McCarthy, Ruse J. J. Bell, Weigand, Jr., Spencer L. Depew, Donald A. L. Paul J. M. Buchanan and Moberly, Wichita, all Charles R. were with him on ap- the brief for the pellants. Henson, Attorney General, Charles Assistant argued N. cause, Fisher, Patterson, Saylor, David H. Donald C. K. L. Summers Jack and Edwin Smith, Topeka, were D. all with him on the brief appellee. the court was delivered The opinion This is an action by landowners Schroeder, recover dam- J.: on an contract the value of ages implied property rights alleged appropriated by to have been State Highway Commission of just the payment compen- and without condemnation without Commission the State allege landowners sation. No. *2 access to S. of direct right taken their U. unlawfully the trial court of the parties and admissions 54. the Upon pleadings on Commission for State Highway entered the summary judgment the landowners’ taking of compensable the there no ground was appeal. duly perfected of landowners access. The of this case there facts whether under only question is the of rights a of the landowners’ taking was compensable U. No. S. 54. Commission State Highway (hereafter
It the position admit- the the Commission) pleadings referred to as K. S. 60-236) A. pursuant ted the Commission facts (secured by the trial court properly is no dispute, which there concerning a matter of law. for as summary judgment sustained the motion is to be determined The facts the issue herein upon which as follows: wife, and at now own all times husband appellants, on the owned real north side property action have to this
material Wichita, of city west but U. S. No. commercial undeveloped but is platted urban area. The land was Commission condemned in the In the 1952 the year property. a highway Kansas an easement for name the State of property, way appellants’ description a portion over of access admitted. were (Abutters’ been condemned.) a constructed divided concrete four-lane the Commission lanes, eastbound westbound traffic separated
highway, U. designated part No. the state which was abutted the entire south highway boundary This system. highway land, wholly and was constructed within appellants’ condemned. previously easement constructed 1959 the Commission as a U. S. part
In the year system, and the state highway frontage No. road at westbound traffic north of the lanes of U. S. Highway a location appellants’ property. adjacent No. road frontage
No of the aforesaid situated on portion was located entirely within the property. easement appellants’ in 1952. highway purposes condemned road, the construction of the At all times since aforesaid frontage road, have had and now have access to appellants frontage at all where the north of this road is points edge frontage adjacent to the appellants’ property.
At all times material herein and to the construction subsequent road, had and frontage appellants have now have access to the westbound traffic only lanes of connection points between road and frontage the westbound traffic lanes constructed in 1953.
It is undisputed points between the frontage connection road serving the appellants’ westbound traffic 1,067.44 lanes are feet apart. One is located 155.56 feet east of east boundary appellants’ property, and the other is located 714 feet west of the west boundary the appellants’ property. appellants’ fronts the question for a distance of 197.88 feet.
The Commission constructed the aforesaid road *3 safer, purpose U. S. making Highway No. 54 less dangerous and the for welfare of the people, following study and recommenda- tion its by safety department.
As heretofore stated,
simple
the
issue to be determined is
whether
foregoing
the
facts there
was a compensable “taking”
of the appellants’ rights of access to the public highway. This is
question
law to be determined by the court in the first instance.
Commission,
361,
v. State
(Brock
Highway
195 Kan.
It has been held
State Highway Commission “takes” prop
for its
without resort
erty
purpose
lawful
to condemnation or other
and a
person deprived
proceeding,
property rights is not com
injured party may bring
the
pensated,
action against the Com
for full
in the
compensation
mission
form of an action on implied
Puskarich,
contract.
Comm.
(State
148
388,
v.
Kan.
83
132;
v. State
Comm.,
P. 2d
Atchison
161 Kan.
171
and Dugger
Commission,
P.
v. State
Kan.
It has also been held to and from an existing public one the incidents of ownership of land thereon, called a sometimes right access, common law not taken may from the owner by the public be without just com- been of a deprived legally the landowner has when pensation, Commission exercises its access. Where the protected right of access condemnation right by a legally protected to take power otherwise, has a compensation the affected landowner or taken. the Commission of the property for the value While law, do holding it contends cases so foregoing concedes the this decide case. regulate power It within argued power act in in- gives power state Commission incurring liability though terest even compensation, without affected or destroyed. citizens be even v. Smith State (Citing, 259, and cases cited therein.)
It recognized must be that these two which the types power exercises are Commission exclusive with dif- mutually polestars ferent legal consequences. The use of one incurs com- liability for but the other pensation, does An act must Commission not. classified as an be exercise of one other. type power cannot both- be case the acts of instant as revealed by record, uncontroverted facts in the therefore held to must be
be domain, within orbit of the of eminent or within orbit the police power protect safeguard welfare by regulating traffic on the That is the issue highways. presented this appeal.
A similar question was into focus in Smith brought High- way follows: supra, limitations, “Subject to constitutional the state has absolute control over the (State Atkin, highways
streets and within its borders. Kansas, Pac. 97 Am. S. R. affirmed Atkin v. 191 U. S. 24 S. Ct. *4 124, 148.) power supervision may 48 L. Ed. Such and control be exercised directly by legislature, delegated governmental or the be to a subordinate agency. every involving impairment problem in case “The basic conflicting e., private public rights. reconcile the interests —i. access to government power power to in is the act furtherance of the through good, legislation any legitimate public the either or exercise of other health, safety, means, public welfare, promotion general in the morals and incurring liability resulting injury private (Mug- for the without individuals. Kansas, 273, Dolley, 8 S. Ct. L. ler v. Ed. 205 and Schaake v. U. domain, [n. 118 Pac. 37 L. R. A. Eminent s.] on the hand, sovereign damage power private property other is the to take or Milford, (Highbarger public purpose payment just compensation. for a on supra 633]; Highway [71 Kan. Simmons v. State supra 392].) [178 Kan. access, property “Since there like other is no doubt the that upon payment just public purpose can be taken for under eminent domain compensation, interesting question public proceed the the can under how far police power. damages compensable the under Determination of whether noncompensable police power depends eminent domain or the on the under weigh importance relative must rela- of the interests The court affected. individual, public just tive interests of the as to arrive and that of so at a unduly government proper in in balance order that will not be restricted good, giving exercise of its functions for the while at same time policy insuring due effect to in the eminent domain clause of the indi- against governmental by the exercise of vidual an unreasonable loss occasioned power. regulation highway “It is well settled limitation and comes traffic police power, any part under the and it makes no difference how or where gained liability the traffic access to road. The of traffic without includes, payment compensation among things, prohibiting for the other left turns, one-way prescribing prohibiting traffic, access or crossovers between lanes, prohibiting regulating separated parking, restricting traffic speed, weight, highways. size character of vehicles allowed on certain police power begin? end and the “Where does of eminent domain attempted generalize by declaring Some courts have that the injury property being paid ends to the owner in when for his injury greater having pay than the property. Highway, (See, Rev., pp. The Limited-Access 27 Wash. L. 111-129; and Rights Abutting Owners, Freeways Rev., pp. and the 3 Stanford L. 298- 453,454.) 811.)” (pp. Smith the court held compensation that taking must because the paid be state there rights condemned the abutting of access in its eminent domain rights landowners’ proceeding. On case, there no the facts that was complaint by landowners of their concerning portion highway, Commission the State them provided where with access road. The issue frontage via concerned the taking feet of the of 1410 abutters’ condemnation which No. 36 no U. S. where existing fronted road was or provided. planned issue here was not presented decided in
On the facts Smith v. Commission, supra. given of law here presented consid- proposition careful in Brock v. State Highway the court eration by supra. this court had taken previously Franks position There and in v. State P. *5 Atkinson State Highway reconsidered, and these decisions were overruled.
Brock the court said: entering “Without into an extended discussion as to what does or does not rights constitute undue interference with access on a conventional land- or highway granting right service we are forced that the to conclude doctrine a abutting developed of access to landowners for conventional or land-service highways application highways. does not have the same to controlled access appellants “The contend that controlled access facilities vigorously (K. 68-1901, seq.) mandatory provision requiring statute et is a S. A. con damages payment access demnation and when are restricted. We agree way attempted do not with this construction. The statute in no to existing right police power. restrict the state’s to conrol access under the give authority act was no doubt intended to the State Commission by right entirety. to take in its condemnation of access This could not police power. abutting highway be done under the An owner land a could placed right not be in a cul-de-sac made under case law. This was the that Perhaps was extended the controlled access facilities statute. the chief design permit was to statute the State Commission to meet the standards enabling of the federal laws. was more in the form of an requirements statute to meet the of the federal Interstate Defense (23 System. seq.) U. S. adopted C. A. § et The standard Inter Highway System required state and Defense acquire that states be able to rights abutting thereon. abutting right that “We adhere to the rule the owners of lands a public system right access to the road but it does not that have a they follow ingress egress thoroughfare. direct to and a controlled access from right access, right if it can be determined to be a under such circum- stances, right reasonable, to but unlimited, not access to and from abutting lands. right “Although highway landowner has a to use an a he cannot deprived say compensably damaged he has been his be to heard highway does not have direct access to because he a certain where judgment dictates that from the should be controlled and subject (pp. 369, 370.) to control under the state.” (Emphasis added.) holding substance of Brock is that the right of access owner abutting property street or highway is reasonable, unlimited, but merely access to and from the abutting property. As applied controlled access facili- ties, where a road provided to which the abutting owners access, have direct and they have reasonable access from the abutting via the frontage road through- traffic lanes of the controlled access highway, abutters’ rights the State or appropriated not been taken *6 of access have under the regulation police to merely subjected but non-compensable. if are state, damages, any, and their power of the and egress ingress complete are afforded Where owners property abuts, have they and their property to a road frontage upon main traveled lanes road the the to frontage reasonable access via inconvenience suffered highway, any of a controlled access Under these of travel. circuity them is merely non-compensable their circumstances, in the value of decline that has occurred of traffic is non-com- result of a property which the diversion to the An has no pensable. property owner continuation of a in front of his property. flow traffic road, sys-
In the highway Brock a frontage part which was stem, through-traffic access to the provided the owners of land with held connection, lanes at This was apart. 575 feet points only of traffic within as a matter of to regulation law be a reasonable State state, Highway the acting through of the the landowners not denied. There and access was the extremeties granted were lanes at through-traffic access to of their and facility, the controlled access property fronting openings cross-over had constructed Commission were openings for their Such cross-over special use and benefit. of connec- only points feet and apart corresponded road to frontage tion which the from the landowners had through-traffic lanes. in the instant case therefore into question resolves whether of connection points frontage between the road serving ap-
pellants’ westbound traffic lanes of U. S. No. 54 provide appellants with reasonable from their access to the abutting property through-traffic lanes of the controlled ac- 1,067.44 cess These of connection are feet facility. points apart. One using the westbound traffic lanes on this controlled access make an facility would be exit 155 feet of the required east east onto the boundary appellants’ property frontage road thereby gain appellants’ property. leaving ap- one would be pellants’ property required to travel 714 feet west of boundary on the appellants’ property west road there enter the main traveled westbound traffic lanes. facts we hold as a matter of Under these law the appellants from their to the abutting property reasonable through- are afforded They complete No. 54. traffic lanes U. S. the frontage their abutting property from ingress egress the frontage their via road, from and reasonable access controlled access facility. through-traffic lanes road have not been taken of access that the abutters’ follows reg- merely subjected hut or appropriated by state, if and their damages, ulation under the police power any, non-compensable. the east and west- traffic between of cross-over on controlled access facility through-traffic
bound lanes Smith v. State of the state. (See, within Commission, supra.) court affirmed. of the lower judgment *7 the dissenting: I must dissent on respectfully J.,
Schroeder,
construction
previous
court has
reversed its
ground
completely
68-
(K.
facilities statute
A. 68-1901 to
of the controlled access
in Smith v. State
Commis-
announced
inclusive)
sion,
My
fully
185 Kan.
and for for a of their property right simmers main the claim are entitled to direct access down to they traffic lane for the entire frontage traveled of the westbound portion or service road con- frontage their to the property. They refer their by structed commission in 1959 as a ‘barrier” to to the highway. they No claim made do to the to their or that frontage adjacent property, service road and to the of their circuity interchanges travel east west traveled lane property affording entrance to the main westbound is unreasonable.
This decided district court several months by prior case was to our decision Brock v. State and the district court held that the control traffic lanes
access to was within high-speed police power state, exercised the State properly Highway Commission traffic for a regulating higher degree safety; that construction road frontage as disclosed pleadings admitted failed to any injury facts show compensable plaintiffs, and there no being genuine issue as to material fact between the parties, the court entered summary judgment as a matter of law in favor of the commission. this decision in Brock, view of court’s supra, holding is given
where abutter unlimited access to a controlled-access road, of a means highway by reasonableness of com- action under the mission requiring circuity of travel to reach other traffic lanes is question law reviewable by courts circumstances, under facts and existing this case was set for re- at the December 1965 argument Session. The parties stipulated distances to interchanges east and west plaintiffs’ property *8 entrance to the main affording lane, traveled westbound traffic set in correctly forth the court’s opinion. case was on reheard the merits and the filed plaintiffs a supplemental brief. whether the plaintiffs at issue is suffered point compensable their of U. right of access to S. injury by 54. conceded that the commission acted It is pursuant the provisions 68-1901, Statute of our Controlled-Access S. A. (K. et when seq.) it or service road for frontage constructed the purpose of making safer, highway dangerous, less and for the welfare of the traveling following study public, recommendation by of the commission. It safety department is also conceded commission did not condemn plaintiffs’ of right it when right acquired way 1952.
Many legal questions arising basic out the National System of Interstate and Highways Defense present pressing problem interests —that of reconciling conflicting private land use versus use. public highway Generally speaking, backbone of this federal-state system premised primarily upon policy access control. The two great powers government involved— antithetical; eminent domain and the police power the line —are of demarcation between their valid is not always well de- exercise fined. 80 U. (Pumpelly Bay Company, 20 L. Ed. v. Green 557.) Eminent domain is the to take right private public use without the owner’s consent upon payment just com- hand, pensation. On the other power state to restrict the use of property paying without compensation by a valid regulation health, intending promote the public safety, morals and general welfare.
Application of our Controlled-Access Statute to fact situations produce legal questions great magnitude relating restric- owners, tion of access of abutting roads, service new existed, highways where none previously and control of land use areas, interchange areas. all these the traditional police power may be exercised properly under statute.
In applying to solve power some of these problems, courts should ask and answer the following questions. What is exercised, the police How is it power? and what are its limitations? access, What is an abutter’s be restricted police power? Can the rights, two the private right of the abutter and the state to promote public safety, be harmonized? Mr. As Burch stated in State Comm. v. Panhandle Justice 185, 189, Eastern L. P. cases dealing with eminent domain must be to one put side.
The Police Power like the “police power,” power domain, of eminent is an inherent power sovereignty and comes into with the being government establishment of state and continues as long govern- ment endures. The term is not susceptible definition circumstantial and is precision subordinate to constitutional limita- tions. is a governmental self protection and permits reasonable particulars essential preservation community from injury. It rests the fundamental principle every owner holds his property
23 as regulated that use be so under the limitation its implied health, morals and welfare general injurious safety, to not be in he lives. community (Panhandle of the Co. v. 613, 1090, Commn, U. L. 55 S. Ct. 563.) 294 S. 79 Ed. a state’s jurisdic-
extends to the entire
business within
property
tion.
it in
cases.
Co.
subject
proper
(Transportation
Both are
635, 642,
336;
v.
99 U. S.
Ed.
v. Los
Chicago,
25 L.
Hadacheck
394,
348,
143,
239 U.
Ct.
Anno. Cas.
Angeles,
S.
60 L. Ed.
36 S.
1917B, 927;
205,
Kansas,
623,
Ct.
v.
123 U. S.
31 L. Ed.
8 S.
Mugler
273;
598,
80,
Schaake v.
85 Kan.
L. R. A.
Dolley,
37
[nsl
877;
Davis,
473, 484,
782,
Martin v.
368
app. dis.
25,
5,
S.
7 L. Ed. 2d
U.
owner. The state does not
make
of it.
it or
use
appropriate
the owner from
a use
merely prevents
making
which interferes
paramount right
ascertained
public safety previously
action—in the instant case
state
of our Con-
enactment
trolled-Access Statute and the
and construction of controlled-
design
U. S.
If a
is otherwise a valid exer-
54.
the fact that it
police power,
deprives
cise of
state’s
render
use does not
it unconstitutional.
of its most beneficial
(Walls
254 U. S.
65 L. Ed.
v. Midland Carbon
41 Ct.
*10
Rock,
511;
Reinman v.
171,
Little
237 U. S.
Limitations of Police Power Except “reasonableness,” familiar standard of courts have generally refrained from area in declaring any specific which the invoked, may be but the classical statement rule in Steele, Lawton v. 385, 152 U. S. Ed. 14 Ct. 499 L. (1894), is still valid today, and I “. quote: . . To justify the State in . . . its interposing authority in behalf of public, first, it must appear, that the interests ... re quire interference; and, such second, that the means are reasonably for necessary the accomplishment of the purpose, and not unduly oppressive upon individuals. . . .” (p. 137.) seems trite to mention that action commission in designing constructing a controlled-access highway, or in constructing or service roads for such a statute, highway pursuant to the is action by the state within the meaning of this rule. (McCandliss Construction Comm'rs, Co. v. Neosho County
American Mut. Liability Comm., Ins. Co. State 2dP. 1091.) But state action in the form of regulation can be so onerous as to constitute a constitutionally requires compensation. Mahon, (Penna. Coal Co. 260 U. S. 67 L. Ed. 43 S. Hence, Ct. 28 A. L. R. 1321.) we come to the elusive question: Where does police power end and eminent domain begin? There is no to precise answer the question. Each case must be considered courts on its own merits. If a line can be drawn between the exercise of these two powers, Mr. Justice Holmes, Mahon, in Penna. Coal Co. v. had supra, this to say: hardly go “Government could on if some to extent values incident to paying every change could general be diminished without such in the long recognized, enjoyed law. As implied some values are under an limitation yield and must power. obviously implied But limitation limits, must have process its or the gone. contract and due clauses are One determining fact for consideration in such limits is extent of the diminution. magnitude, When it reaches certain a in most if not in all cases there must be exercise compensation domain eminent to sustain the So the act. given weight question greatest depends upon particular facts. open parties judgment legislature, always it to interested but power.” (p. gone beyond legislature its constitutional contend is, regulated general a be “The rule at least that while taking. extent, goes recognized regulation far be certain if too will degree already question said, As we this is . . . —and therefore (Em- by general (p. 415.) disposed propositions. . . .” cannot be phasis supplied.) case, versus Mugler quoted In the Kansas was recent Goldblatt reaffirmed, it was said: determine ends and . formula to where “. . There no set *11 relevant, taking begins. Although comparison and is of values before after a conclusive, Mahon, by Pennsylvania supra, no means see Coal Co. v. see $800,000 Sebastain, supra, diminution in value from Hadacheck v. where a $60,000 upheld. (p.594.) . was . .” Commrs, See, also, Util. 254 Erie R. R. Public Co. v. U. 322, 333, of expenditure
65 L. Ed. 41 S. Ct. where over $2,000,000 the exercise of through power required was to insure public safety. Safety Public con safety governmental a power, supervision nature, as through exercised
tinuing police power in its to be largest the moment and the require, special exigencies legislature that the We have held legislative discretion is allowed. use settled that their over and it is well highways plenary power limited, in exercise of the regulated and may be controlled gen and safety police power necessary promote whenever Hence, of traffic under welfare of the people. eral turns, left things prohibiting such includes traffic, access or cross overs be prescribing one-way prohibiting lanes, and regulating or parking, traffic separate prohibiting tween and character of vehicles allowed weight, size restricting speed, rel., Louis-S. F. Rly. ex v. St. on certain highways. (State, State, rel., 980; v. State Commission 433, ex 124 Kan. 532; Taxation, 240, 247, Riddle Kan. 181 P. and Revenue 301; 603, 611, 339 P. 2d 184 Kan. v. State Highway 549; 624, 383 P. 2d 191 Kan. v. State Highway Moore Garrett, 109, Watson v. City P. 2d Jones 585, 589, Topeka, sense, is, reg- a police Statute in the best Our Controlled-Access legislature protection deemed essential ulation exer- the unrestrained against and of our citizens lives enacted to meet right. citizen of his own was cise brought conditions about twentieth needs of social and economic and the and increased use of urbanization century perfection conflicting necessary adjustment motor vehicle. It calls for two highways, public using interests —that thereto. the safe use Generically, abutter and his the more interest highways represents important of the public in- statute grants power the two. This contains broad was same, efficient tended to embrace all details for the convenient and designed movement of traffic. to have purpose highways Its and constructed such manner that their use would not be dan- Old were to be gerous traveling public. highways relocated reconstructed, and new were to be located and con- highways structed. These to be from ex- highways were free abutter’s access crossovers, cept designated interchange areas and were de- signed primarily traveling only secondarily serve the land over which to deal they pass. general grant with an effectively enterprise of this interests of magnitude public safety is and the statute not to be paramount, interpreted narrow, in any technical or manner. illiberal statute forms the basis for a different to the solu- approach This tion of than courts have had concerning questions *12 some of their Heretofore have the opinions. they approached ques- tions the basis of individual interest alone. Under this largely on the applied, statute courts must now them on properly approach safety basis of the convenience and of the of the state people with- the limited or restricted use the losing sight may out individual make or has the to make to access to such right highways. Broad in opinions statements found some under the common law the absolute to right ingress abutter has unrestricted and egress and from streets and must be modified highways to harmonize change with the declaration of this statute. The is an appropriate to legislature one for the make. As Mr. Chief wrote Harvey Justice State, rel., 555, ex v. Knapp, 207 P. “Indi- 2d will, viduals do not live alone isolated areas their they, where at all assert of their the effect regard can individual without to others.” upon Right of Access to of access right appurtenant
The property the abutting prop- from of access to and right public highway v. Railroad (Longnecker or highway. means of the street erty by State Commis- 492; Highway Riddle v. Kan. Commission, sion, Smith v. State supra; Highway Commission, right supra.) P. Moore v. State “taken” not be been given property, status upon It is justified from just compensation. the owner without reasonably necessary grounds of and is such as necessity entitled, land, against of the but the owner is enjoyment high- it and the to his land at all between public, points courts adopted declared created and way. right, is a judicially (See, decisions. existing judicial to conditions at time Railroad, Harlem 49 L. Ed. 25 S. Ct. Muhlker v. 197 U. change, apace. But conditions and the law follows 522.) rec right But the nature of the of access as is now accepting courts, like rights, most its all ognized by enjoyment, state, free where facts demonstrate its regulation by subject safety. exercise be detrimental to public and unrestricted would right must bend to the abutter travel It is public way. universally safe and efficient exercise of governmental held that acts done the proper these encroaching property, though not directly upon private use, its do not constitute a may impair within consequences or entitle provisions, constitutional the owner meaning state, him cause of give from action. to compensation Chicago, supra; Hempstead, Co. Goldblatt (Transportation Moore v. State supra; Riddle v. State supra; Brock v. supra; Domain, 111, pp. 29A S. Eminent C. supra; § J.
Reconciling Conflicting Interests itself must accommodate of access far the abutters How Courts need not be question. need is decisive answer. They a definite stating difficulty reminded the balance between along points the fulcrum various placed time not permit does right, need and but private the public the sub- dealing of the numerous cases and citation collection *13 validity is in favor of the The presumption ject. it, upon action under burden is of administrative
28 not necessary protection to show that it was owner Mahon, Coal Co. v. Goldblatt safety. supra;
of the public (Penna. Commrs., supra.) v. Erie R. R. Co. v. Public Util. Hempstead, supra; stated, hard can be but courts must weigh No and fast rule just and the individual and strike a relative interests of the not restricted in its unduly balance so that will be government time, due give function for the while at same public safety, effect to the the individual of eminent domain policy insure an occasioned the exercise of the against by loss unreasonable Commrs, v. Util. supra; R. R. Co. Public power. (Erie High Riddle v. State Smith v. State supra; Highway way upon particu supra.) question depends lar facts of if Obviously, blocking case. there is total access, the and the abutter en restriction would be unreasonable titled to D. compensation. (K.N.& Rly. Cuykendall, Kan. Co. v. 1051; 21 Pac. Kan. Sample County, v. Jefferson Where, 440.) however, Pac. the restriction does not substantially with the ingress egress abutter’s (Iowa interfere Smith, 869, 877, Comm. v. 248 Iowa 82 N. W. 2d 755), where “frontage” or “outer access roadways” reasonably provide (Darnall, al., State, al., 201; et v. et 79 S. 108 N. W. 2d Nick v. State D. Comm., 13 Wis. 2d 109 N. W. 2d is abutter 71) not entitled an abutter has the compensation. While it does not that he has highway system, follow thereof; to the main traveled portion circuity direct-access travel, unreasonable, so long is non-compensable. Lavasek, 361; v. 73 N. M. (State Sample Jefferson Gantz County, supra; County Commrs, Jefferson Brock v. State Like supra.) wise, occasioned diversion loss business of traffic non & v. A. T. S. F. compensable. (Heller Rid. rules, foregoing it will be noted the applying frontage road
was constructed of U. S. right way which Where, then, eminent domain. acquired the point which the are to be determined? In the plaintiffs’ nature of can things only there be one point along can claim access rights abutter and that is the line boundary concerned, far right way highway. So as the palintiffs or to north of everything this line is land private outside includ- own; their ing everything line including inside *14 road, Once have highway. they or service is a crossed part are, the high- either within boundary they legally speaking, line way they whether are highway, upon or outside the depending their line. moving they boundary or from land when cross after they crossing When within the limits of the highway are line, boundary must share other user of the they every highway with the restrictions of and from to lane on the turning moving lane The restriction of between lanes highway. separated crossovers a public highway designated is within the points police power of the state to traffic regulate flow of interest of public safety. It follows that when the plaintiffs as abutting owners given access to the of multilane nearest lane U. S. 54—the service road—and claim frontage or is no made that the circuity unreasonable, of travel to other traffic lanes is no property right has been “taken” which must be compensated by the state. Where a property abutting public highway sepa- rated traffic lanes has unlimited access to the lane nearest property constructed authorities, and maintained by the public whether name, called a frontage road or by some other access to and from the property by means of the afforded highway is and the right access is neither nor regulated taken. In view of the and since the foregoing, road con- frontage structed by the commission for the purpose of U. S. making high- way safer, dangerous, less and for the welfare of the traveling public, following study and recommendation safety de- commission, partment neither the controlled-access statute nor the and design construction of U. S. Highway multilane or case, under the record in this the construction of the road frontage access, which the plaintiffs direct constituted a “taking” of their within the meaning of and statutory constitutional provisions, or entitle them state, to compensation from the give or them cause of action for damages.
As previously indicated, parties stipulated at reargument distances to interchanges east west of plaintiffs’ It property. feet 155.56 from the east of interchange their to their line, east boundary it is 714 feet from their west boundary line to the interchange west of their property. obvious are not denied plaintiffs ingress egress to and from their property, they may easily reach the traveled westbound main highway by lane passing over the frontage road. service on for travel here, Where, made adequate provision as distances, not inconvenient areas at interchange roads to or service through the the exercise said that it cannot be 68-1901, imposes et seq.) S. A. statute (K. application award of to authorize an as of travel so circuity unreasonable of his property. for abutting owner damages judicial judgment their Moreover, not substitute courts here, a valid under exercised the commission judgment which demon- rather, to find facts act; are obliged courts legislative from the realm of the departs conduct strate that the commissions *15 realm of the unreasonable- into the over passes reasonableness of private and subversive it arbitrary, capricious ness—that is exercise of power. a rather than bona as to an abuse indicate fide 611, 614, Pac. Co., 88 Kan. 129 Railway v. (City Emporia of 1014, 1008, 317 P. Commissioners, Kan. 181 Board Spurgeon v. of 798, 2d and cases cited.) whether question in this state that the the rule long been has statute, administrative ordinance, or acts of an or regulation an thereof, is void because “un- in pursuance or commission board only by determined courts. of law be is a question reasonable” 1095, Co., 718, 94 Kan. 147 Pac. v. Railway Emporia In City of said: was question is a is void because unreasonable or not ordinance “Whether an Zanditon, 273, 10), determining (Lebanon Kan. 89 Pac. v. 75 law of ' forms, by question bound mere courts are not nor are of reasonableness “The pretenses. liberty by they are under They be misled mere —indeed upon things they duty of whenever enter look at the substance a solemn —to city inquiry [legislature council] a has transcended the whether or ’ Lyons Cooper, 324, authority” (City 328, v. 39 Kan. 18 Pac. limits its of of (1. 296).” 723.) c. 273, 10, Zanditon, Kan. 89 it was said: v. Pac.
In Lebanon refusing jury that the court erred in to submit to is contended “It also by appellants tending offered to show the evidence their consideration for agree unjust cannot with the and unreasonable. We ordinance being undisputed, question appellants facts in this contention. question for reason is a of law and must void whether an ordinance (1 Corp. Dillon’s Mun. and cases there the court. § be determined (1. 275.) cited.)” c. Board 110 Kan. 202 Pac. Embalming, Miller In of said: it was question only reason- must the courts meet determine “Not official, body, question is an when such ableness of administrative squarely presented, infrequently but it not has determine reasonableness of more Railway Co., enactments, (City Emporia city formal such as ordinances (The Wilson, 718, 722, 1095), 94 Kan. 147 Pac. and state laws State v. (1. 141.) 789, 796, 799, 800, 679).” c. v. Cities Service Oil 3 P. City Marysville Kan. it was said: “ question reasonableness, judicial ‘The to a determination of the however, pro- substance, the matter of essence and method of cedure; long compe- and so as the defendant cannot to suffer until be made a passed justice legislative guaranties court tent rates the ” infringed.’ (1. the federal constitution are not c. See, also, Mathews, Gilbert v. 352 P. 2d 58.
It, therefore, that the follows reasonableness of question to reach circuity interchanges travel of multilane highway by means service roads constructed the commission statute, part the state highway system pursuant lanes, affording owner access to other traffic subject courts, to review as a matter of law. This fol- only by necessarily lows since here involved is where point ends and is, a “taking” begins whether has been prop- —that erly invoked in restricting use of the and if it has property, not, to domain. require application law eminent This courts, ais question law and not a question consideration of fact for consideration of juries.
I in disagree must Schroeder s statement his Mr. Justice that this court done dissenting an about-face con- opinion K. 68-1903. Under no struing circumstances was statute A. negate intended of the commis- legislature authority sion use of to restrict the exercise of the police 68-1904, 68-1901, under Secs. 68-1902 and and K. S. A. Ch. Art. v. State (Moore supra; Riddle 4. indicated, As supra.) v. State Highway previously owners to considering rights controlled- have been highways rights whose restricted commis- by the domain, s cases with eminent police power, dealing sion exercise such Smith v. State Highway supra, must be put side, courts determine that one unless what was done under the was a circumstances abutter which by the state. S. A. requires compensation (K. 68-1903.) eminently affirming This court is correct the judgment court below.