STEFAN AUTO BODY, Appellant, v. STATE HIGHWAY COMMISSION, Respondent.
Supreme Court of Wisconsin
October 3—November 1, 1963.
By the Court.—Judgment affirmed.
For the respondent the cause was argued by A. J. Feifarek, assistant attorney general, with whom on the brief was George Thompson, attorney general.
HALLOWS, J. This case presents the issue of whether an abutting property owner is entitled to compensation when direct access to the highway which becomes an access-free highway is replaced by a cul-de-sac frontage road which affords access at interchanges. The defendant argues such damage is not compensable because it results from a reasonable exercise of the police power in establishing the highway as a part of the national system of interstate highways. The plaintiff‘s position on this appeal is that the cul-de-sac does not give it reasonable access to the express lanes of the highway and the loss of direct access results in a “taking” of its property in a constitutional sense, for which compensation must be paid.
Preliminarily, the plaintiff additionally argues the question of reasonable access is an issue of a material fact which defeats the motion for summary judgment. In some cases this may be so,1 but we think not in this case because, in view of the nature of the damages complained of, any access less than direct access will cause the plaintiff some damage. The question is not the amount of damage but whether any damage suffered by the plaintiff by being placed on the frontage road is compensable. This is a question of law and depends upon the nature and the scope of the right of access. If the plaintiff as an abutting property owner has
In considering the nature of the abutter‘s right of access, the nature of loss suffered, and the nature of a frontage road involved in the problem of whether a frontage-road abutter should be compensated for the loss of direct access to a freeway, the courts have come to three different conclusions: (a) Any loss should be compensated and the existence of the frontage road considered in mitigation of the loss, (b) the loss should be compensated only when accompanied by a taking of the land by eminent domain, and (c) any loss resulting from being placed on the frontage road should not be compensated.2 Those states which deny relief reason the right of access is not absolute and not restricted to direct ingress and egress and the provision for indirect access to a highway by means of frontage roads is a valid exercise of the police power.3 States which allow damages for being
The conflict in the decisions ultimately rests in the different views of the nature of the right of access or what constitutes a reasonable exercise of the police power. All decisions recognize a complete denial of access to an existing road is compensable, and it is generally recognized the state under its police power may indirectly affect the abutting
It is true the line between police power and condemnation has not been and perhaps cannot be sharply drawn. The problem is really one of degree. In both, damages may result but if the damage is such as to be suffered by many similarly situated and is in the nature of a restriction on the use to which land may be put and ought to be borne by the individual as a member of society for the good of the public safety, health, or general welfare, it is said to be a reasonable exercise of the police power, but if the damage is so great to the individual that he ought not to bear it under
The right of access or of ingress or egress of an abutting property owner to a public road or street is a property right not separate in itself but incidental to and a part of the ownership of the land and is subject to the superior rights of the traveling public upon the highway and of the state to control that traffic for the common good. In early times, local roads were constructed for the improvement of property and in many instances the land was dedicated for such purpose and the road was paid for by local real-estate taxes or by special assessments. The concept of access rights in that context was not greatly influenced by the needs of the public generally which might clash with an unrestricted use of the property in relation to the abutting street. Covey, supra; Clarke, The Limited-Access Highway, 27 Washington Law Review (1952), 115. But a more-modern concept of the right of access restricts the scope and nature of the right in relation to the needs of contemporary society. Or, as it has been said, we cannot have changeless roads in a changing society. Darnall v. State, supra. Recent concepts of the function of highways have added to the local road and street concept limited-access highways, freeways, and expressways because of the growth of automobile traffic and
It is argued by the defendant that as long as the plaintiff has access to the interstate highway by a system of public roads his right of access is not impaired unreasonably. This argument proceeds on the theory the abutting property owner is merely entitled to some physical access to the public highway system. In this case that is true only to the extent to which the indirect access by the frontage road to the new or existing road is considered reasonable. However, the limited-right-of-way concept finds some basis in prior decisions of this court in what is called the circuity-of-travel doctrine. This idea was advanced in the early case of Chicago & N. W. R. Co. v. Railroad Comm. (1918), 167 Wis. 185, 167 N. W. 266. That case involved the vacating of several streets in a city to eliminate at-grade crossings and the substitution therefor of an overhead crossing. The circuity of travel was not held to be a compensable item of damages. In Carazalla v. State8 which involved a taking of land for the construction of a new highway across the plaintiff‘s land leaving the old highway intact to which the plaintiff had access rights, we held no compensation should be paid because the abutter‘s access to the new highway was circuitous. In Nick v. State Highway Comm. (1911), 13 Wis. (2d) 511, 109 N. W. (2d) 71, which involved Highway 30 as a limited controlled-access highway, we said, page 514, relying on a zoning case,9 “An impairment of the use of property by the exercise of police power, where the property itself is not taken by the state, does not entitle the owner of such property to a right to compensation,” and held the diminution of value of land because the access to the highway was made more circuitous was not compensable. The question of the reasonableness or the suitability of the access to Highway 30 by way of another public road abutting the property was not raised.
In the concurring opinion it was stated, page 518, “If by reason of providing a frontage road, or the existence of a previously existing connecting highway, there is reasonable access to the controlled-access highway, no taking requiring compensation should be held to have occurred.” The Nick Case involved the police power under
The trial court adopted the modern concept of the nature of the right of access and did not consider the plaintiff‘s right of access included the right to the flow of traffic or the continuance of that traffic on the highway. We agree.
The plaintiff‘s loss of income and the diminution of value of his property for use as a filling station and automobile service garage result from the characteristics of that particular use. The loss of profit results not so much from the inability of the plaintiff and its employees to reach the highway as from the inability of the public traveling on the highway to directly reach its place of business. But the control of the traffic on the highway is subject to the police power of the state. Considering the purpose of the construction of Interstate Highway 94, the nature of the access rights, that the interchanges are approximately five miles apart and served by frontage roads, we hold that reasonable access to the interstate highway was given the plaintiff. It is unfortunate the plaintiff‘s property lies approximately at midpoint between these interchanges.
It is urged the defendant is estopped from asserting the taking of its access rights to State Trunk Highway 30 was
By the Court.—Judgment affirmed.
DIETERICH, J. (dissenting). I disagree with the principle of law applied by the majority in the instant action that a person, whose means of livelihood is taken away by the state in connection with the removal and construction of a new interstate highway, is precluded from recovering damages under the provisions of
It would seem to me that the first question that is presented by the undisputed facts in the action is whether the plaintiff has been deprived of his property. The United States supreme court in determining the question of whether a person has been deprived of his property rights recognizes
Courts have recognized that a landowner is entitled to compensation where his direct right of access is taken, even though other, but less satisfactory means of access are available. Oklahoma Turnpike Authority v. Chandler (Okla. 1957), 316 Pac. (2d) 828, 832; Blount County v. McPherson (1958), 268 Ala. 133, 135, 105 So. (2d) 117; McMoran v. State (1959), 55 Wash. (2d) 37, 40, 345 Pac. (2d) 598; State v. Thelberg (1960), 87 Ariz. 318, 324, 350 Pac. (2d) 988.
C
Highway 30, prior to the construction of the new Interstate Highway 94, was a part of the state trunk intrastate highway system. The plaintiff‘s access rights to Highway 30 in the instant action existed without any prior permit being required, and he established a business which is totally dependent upon some highway traffic. Termination of any
As to what constitutes compensable damage within the meaning of constitutional guaranties, the rule which has received the most support in actual application is that compensation is required not only when there is an injury that would be actionable at common law, but also in all cases in which it appears that there has been some physical disturbance of a right, either public or private, which the owner of a parcel of land enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally. 18 Am. Jur., Eminent Domain, p. 765, sec. 139. The Colorado court, in reversing the judgment of the trial court based upon a finding of a jury, that the owner of land adjacent to a pre-existing highway suffered no damage when his rights of access were condemned as an incident to the conversion of the highway to a freeway, held that these rights of access constituted property. The court
The motion for summary judgment should have been denied because substantial issues of fact and damages exist which in my opinion cannot be resolved upon affidavits.