*1 TRIANGLE, INC., Appellant, Alaska, Appellee.
STATE
No. 4811.
Supreme of Alaska. Court 4, 1981.
Sept.
рartially condemned when the lessee holds options lease, to renew its proper and the fees, attorney’s pre- measure for costs and judgment in eminent domain ac- tions. project
As widen up- to and grade Fairbanks, the Highway Steese Alaska, complaint the state filed a to con- demn .079 high- acres land way, rights as as well and all of direct highway. access from land to the J & B, Inc., land, had owner of the leased its Inc., property Triangle, appellant action.1 In November of the state Taking deposited filed a Declaration just as for the land. $950.00 B, Stipulation J & entered Inc. into a and, thus, with the Settlement state only Triangle’s trial of this action concerned property. interests in the Upon partial summary judg- for motion state, ment court ruled Colver, John W. Warren C. Colver & As- that Triangle was not com- entitled sociates, Anchorage, appellant. for pensation elimination its direct Highway. access to the Steese After a Jr., R. Satterberg, William Atty. Asst. trial, judgment the court entered for Trian- Gen., Fairbanks, Kerns, Atty. Richard Asst. gle $1,679.21 sum Gen., Anchorage, Condon, and Wilson L. of the .079 acres.2 Gen., Juneau, Atty. appellee. partial attorney’s was awarded fees and costs, pre-judgment as well as interest at RABINOWITZ, J., Before C. and CON- percent the rate per of six annum. NOR, BURKE, MATTHEWS and COMP- TON, JJ. appeal, Triangle On establish seeks to its
right to compensation for the elimination of
Highway.
its
direct access
the Steese
OPINION
B,
property
it leases
J
from & Ine. is
COMPTON, Justice.
Highway
bounded on one side
the Steese
appeal
This is
from an eminent do-
Loop
and on the other
Farmer’s
Road.
main action. The principal issue raised is
project,
Before the
state’s
Steese
whether
lessee
property
of real
is entitled was
A driveway
undivided.
located on the
to compensation for the state’s elimination
property
provided
used
since 1962
di-
property
to an
rect
both
access to
and Farm-
аbutting highway. Other issues raised on
Loop
Loop
er’s
Road. Farmer’s
Road con-
appeal
the proper
include
measure of com-
highway approximately
nected with the
pensation for a
lessee whose
two-tenths
the property.
of mile south of
Triangle,
operated
nightclub,
Highway, Triangle
nightclub
Inc. had
reconstructed
Rendezvous,
proper-
property.
known
Club
on the
on the
ty
May
nightclub
until
was
destroyed by a fire. The state’s condemnation
2. The
was instructed to first determine the
action was not initiated until June of
entire
of the
value
taken
then
buildings
which time there were
B,
no
on the
apportion the award betwеen J & Inc. and
being
After
informed
respective
state of
Triangle on the basis of
inter-
their
project
improve
the nature
$2,099.01.
the Steese
ests. The total award was for
stated,
completed,
“No hard and fast rule can be
project
After
divided,
weigh
courts must
the relative interests
Highway was a
controlled-
public
and the individual and strike
end-
highway.
Loop
Farmer’s
Road
government
balance so that
will
in a cul-de-sac where it had
ed
unduly
not be
restricted in its function
of that
intersected the
lieu
*3
for
public safety,
while at the same
intersection,
a connector
road between
time, give
policy
due effect
to the
highway wаs
Loop Road and the
Farmer’s
eminent domain to insure the individual
north of
constructed three-tenths of a mile
against an
loss
unreasonable
occasioned
Thus,
to travel
police power.
the exercise of the
business,
Triangle’s
cus-
Highway to
Steese
upon
particular
question depends
the new connector
tomers must now enter
Obviously,
of the case.
if there is a
facts
mile,
road,
of a
proceed west two-tenths
access,
blocking
the restriction
total
pro-
Loop
turn left onto Famer’s
Road
would be unreasonable and the abutter
and then
ceed south three-tenths of a mile
Where, how-
compensation.
entitled
in-
Triangle’s driveway.
into
The net
turn
ever, the restriction does not substantial-
in
crease
travel distance to
ingress
ly interfere with the abutter’s
approximately one-half of a mile.
‘frontage’ or ‘outer road-
egress or where
ways’ reasonably provide access the abut-
compensation.
ter
is not entitled to
I.
right
While an abutter has the
of access
public highway system, it does not
to the
ELIMINATION OF DIRECT ACCESS
right to
follow that he has a direct-access
whether
The first issue we address is
thereof;
portion
circui-
the main traveled
from Tri
the increased and circuitous route
travel,
long
so
it is not unreason-
ty of
Highway re
anglе’s property to the Steese
Likewise,
able,
non-compensable.
sulting
project is so unrea
from the state’s
occasioned
the diversion
of business
damag
a
sonable as to constitute
non-compensable.”
traffic
rights for which
ing
Bay
High-
quoting
paid.3
jurisdic
All
compensation must be
Commission,
410 P.2d
way
196 Kan.
recognize that an owner of
tions
Fatzer,
(1966) (concurring opinion of
288-89
a
right
land has a
of access to and from
omitted) (emphasis
original).
in
J.) (citations
Alaska,
In
public
highway.4
street or
this
a
Triangle refer us to
state and
“right
a
ownership
incident of
is limited to
jurisdic-
from other
multitude of decisions
Meats, Inc. v.
of reasonable access.” B&G
tions,5
persuade
this rule or
but none add to
1979) (em
requires
it
alteration.
In accord-
us that
added).
phasis
This rule is
accord
Meats, we
with our
in B&G
ance
adopted by majority
jurisdictions.
that
possessed
Triangle never
hold that
Annot.,
A.L.R.3d
Highway;
of direct access
Damages
(“Abutting
Right to
Owner’s
only right was to reasonable
Limitation of Access Caused
Conversion
narrow issue of
is limited to the
our focus
Access
of Conventional Road into Limited
it
erred when
superior
court
whether
is,
Highway”).
remaining access
decided that
law,
a matter of
reasonable.
Meats,
principles
In
we set forth the
B&G
by a
the reasonable
controlling
Triangle urges
cаused-
claim of
question remaining access is a
highways:
ness of the
change in access to streets or
I, 18,
of Conventional
Conversion
the Alaska
states:
Access Caused
3. Art.
Constitution
Highway”).
Limited-Access
Road into
Private
shall not
Eminent Domain.
damaged
public
use without
be taken or
Annot.,
just compensation.
are collected
decisions
5.These
(1972),
referred to
note
A.L.R.3d
Annot.,
(1972) (“Abutting
A.L.R.3d
supra.
Right
Damages
Owner’s
for Limitation
thus the
court
reasonable
fact for
access limitation on the
granting summary judgment
erred
on
recover
and it
therefore is not
Although
jurisdictional
the issue.
there is a
persuasive authority
proposition
issue,6
we
split
implicitly
have
decid-
only applies
such limitation
when an
that,
it
opinions
ed in
is for the
owner
physical taking
has suffered a
trial
to determine whether the case
majori
his land.
In accordance with the
presents
compensable
it
ty
before
claim for
of those who have considered the matt
er,7
merely
reject
loss of access or
a claim for traffic
proposition
we
the dissent’s
be
diversion,
non-compensable.
would,
which is
cause
believe
it
as the Colo
Meats,
stated,
tional distance of one-half of a mile that
ods should be included in its leasehold so
potential
gain
customers must travel to
ac-
that,
determining
its share of com-
cess to
business establishment is
pensation
for the
year
a 51.4
lease-
not so unreasonable as to constitute a tak-
hold should
Assuming Triangle
be used.
ing.8
Meats,
As we stated in B&G
correct,
particular
under the
facts of this
A distinction must be made between case, the court’s error was harmless. The
loss of access and loss of traffic flow.
jury determined
value of the .079
The latter is not a
of the owner’s [or
$2,099.01.
acres
taken was
then
interest in his
Restric-
lessee’s]
Triangle
decided that
was entitled to
merely
tions which
result in a diversion of
$1,679.21
$2,099.01.
80% the
Trian-
away
traffic
are thus
that,
gle’s
ruling
claim is
but for the court’s
compensable.
limited to 11.4
(footnote omitted).
II. appraiser further testified that if the lease computed only were to continue for 11.4 RENEW OPTIONS TO B, years, J Inc.’s be & share should 54%. Triangle’s argu We next consider given, Triangle under the instruction ment superior that the court erred when it only should have been awarded 46%. The that, jury informed the for purposes of de jury, Triangle awarded 80%of the termining Triangle’s share of $2,099.01. acres, the state’s of the .079 Triаngle’s Even if we held share years that remained of leasehold. original computed should have been on the basis of lease was for a term of five B, leasehold, years, year by Triangle’s which a 51.4 own ended in 1970. J & Inc. had given renewals, Triangle option for five evidence it should have been awarded $2,099.01. percent period the first of which was for a of fif 81% of the The one dif- years. Triangle op teen had exercised the it was ference between this and the 80% tion, taking, and at the time of by the state’s awarded is de minimis.10 argument meaning “taking” “damage” 8. We thus need not reach the state’s within the “right I, Constitution, however, that no to accеss” was taken because art. there is no 18 of the Alaska compensation. direct access to the Steese from was unsafe and therefore non- compensable that, 10.Triangle argues appeal Triangle or because also al- had not required permit driveway superior properly obtained a the instructed for the Triangle that had a to recover for depreciation erty portion, remaining prop- value reject Triangle’s argument 9. We that because due to the severance of the condemned change accessibility superior to its di- court so limited introduc- property, effectively minished the value of the tion of evidence on this item as to prevent ages. question necessarily compensable. activity recovering Triangle Government from these dam- pursuit goals argument of social often has a detrimen- We think this raises a serious upon Triangle properly tal effect the value of some real has as to whether Unless this detriment rises to the level of a characterized these as severance 1980). Furthermore, III. attorney’s while full fees are the norm un- ATTORNEY’S FEES 72(k), der Civil Rule such fees must be Triangle’s argument turn to We now that Beirne, Moseley reasonable. See when superior failing court errеd (Alaska 1981); Ferdinand v. attorney’s and costs. award it full fees Tri- City Fairbanks, 126 n.12 angle fees in requested attorney’s the sum (Alaska 1979). Thus, attorney’s fees or $22,404.00 $10,- the sum costs in costs Triangle incurred that were not $9,000.00 069.70. It awarded for attor- necessary it to obtain costs, ney’s plus fees $452.82 or that exceeded fees and reasonable costs appraisal, costs of when first superior need not awarded be court. finally sum is determined. If, remand, upon superior court deter- Triangle obtained an Because attorney’s mines full fees costs are $1,679.21, award which exceeds more warranted, it must its articulate reasons deposited by percent than tеn the $950.00 ruling. for so award of state for attor ney’s Civil Rule fees mandated IV. 72(k)(2).11 considering When the issue of fees, attorney’s superior court com INTEREST mented that “if there a reduction The last issue we consider Trian attorney’s actual fees . . . it’s incumbent gle’s argument superior that the court erred upon the court to state the reasons for it.” awarding pre-judgment it interest at agree We Unfortunately, this. percent, the rate six eight rather than carry through court failed to on its percent, per urges annum. good intentions and we now cannot deter the conflict between the various statutes mine it than why awarded less full attor controlling the rаte of be resolved ney’s fees. *6 eight percent so that the interest rate of necessary We find it to applied therefore remand in this case. While AS 09.55.330 requires payment this action a reconsideration of attor- the of “lawful interest” note, ney’s costs. fees and We do in eminent actions in which a decla domain “necessarily taking filed,12 that only those fees incurred” ration of was and AS 45.45.- defending provided in the domain eminent action 010 that the lawful interest rate in Triangle. eight percent should be awarded to the state at the time this was Corp., (it Alaska Development percent),13 Continental 630 case 10.5 was decided is now distinguishable damages (4)allowance attorney’s from claim of costs and fees compensation. appears necessary for loss We need not to achieve and ade- issue, however, quate compensation resolve this briefing because of the owner. appeal inadequate this issue on is so Attorney’s fees this allowed under subdivi- that we must consider issue this abandoned. sion shall be with commensurate the time Appellate 212(c)(l)[h]; Spitzer Rule L.E. v.Co. by attorney the to committed throughout the case Barron, (Alaska 1978); P.2d proceedings. the entire Ass’n, Wernberg v. Matanuska Electric provides, part, 12. AS in relevant 09.55.330 аs P.2d letting plain- an order follows: “If is made the 72(k) provides 11.Civil Rule follows: possession, provided tiff in § into [state] (k) attorney’s chapter, damages Costs Costs. fees in- of this the curred against the not defendant shall be assessed draw interest from the awarded shall lawful plaintiff, the unless: [Emphasis date of the order.” added.] (l) denied, property the or 45.45.010(a) (2) in 13. AS was amended 1980 to the award of the was at least ten (10) percent larger deposit- rate in the state from increase the of interest amount than the percent percent. authority eight condemning to Section ch. ed the or the allow- provided appeal rate ance of the master an SLA 1980. “The interest from which was taken, applies only percent] Act or sec. 2 of this [10.5 (3) pro- action date of under the effective this Act dismissed filed after (i) rule, [July visions of subdivision of this Id. 1980.]” measure interest ... is the specifically states that AS 09.55.440 percent paid in taken, the rate of six is to be actually to be and the domain actions.14 eminent damages actually not basis taken but affected in the injuriously addressed issue raised We cases where the are allowed.” Development v. Alaska Continental in State added). (emphasis 1980). (Alaska Corp., 630 between the discrepancies We observed 09.55.330. AS statutes, but concludеd above-noted . shall ascertain “The or master . . “unambiguously provides 09.55.440 AS following: and assess awarded a declaration . . . interest under per- equal .. . will six taking proceeding and after is entered.” judgment
cent before con- property sought if the to be court did Id. at 995. larg- only part constitutes demned case when limited the rate of err in this it will accrue parcel, er which percent as re- pre-judgment to six be con- portion sought how- quired by again, 09.55.440. AS Once demned reason its severance ” ever, legislature’s we call to the attention portion sought to . . . be condemned. statutes, conflict between these Nichols, 09.55.310(а).1 2A P. See also AS will soon hope that it be resolved. 6.45, at The Law of Eminent Domain § part, REMANDED AFFIRMED (hereaf- (J. 1980) rev. 3d ed. Sackman with proceedings for further consistent 14.1, 14.1[2], “Nichols”); ter 4A Nichols §§ opinion. 14.1[3]; Orgel, 1 L. Valuation Under (2d ed. Eminent Domain 48 Law of CONNOR, J., part. dissents are land Damages Justice, CONNOR, part. dissenting in are meas damages,” “severance termed except majority opinion agree I remainder’s by the diminution in the ured as it relates to for loss of value, by the to the extent caused market parcel. taken severance from the latter’s majority nature of misconstrues the sequel to “inescapable damages are damages in eminent domain Such available ” and, therefore, compensa statutes, ‘taking’ are Alaska where there action. Under here, 563, 567 is a as occurred ble. Babinec 14.21, 1973); due value of at 14-53. both for the 4A Nichols § *7 1069, resulting and dam- 1072 parcel taken for the also Dash v. 491 age to the remainder: of sever (Alaska One element n.6 im compensation for the damages is purpose assessing compensa-
“For the of ance of damages, rights.2 Department access pairment tion and ... its actual value of 257, 8, Linnecke, (1970); 09.55.440(a) provides, part, Nev. 10 in relevant 86 14. AS judgment 14.21, “The include inter- of as follows: shall at All elements § 4A Nichols 14-53. per year per est at the rate of six cent property in the which would value inherent finally amount which exceeds awarded prudent purchaser merit considera- influence paid amount into court under the declaration of Linnecke, determining market value. tion taking.” 11; 12.1, at 12-6 to P.2d at 4A Nichols § 468 High- access the old Steese 12-7. The direct provision further the value of 1. The allows for taking Triangle enjoyed prior way to the that accruing to be benefits to the remainder affecting It value. an element the land’s against damage offset inflicted. AS 09.55.- partial that access 1962. The had utilized since 310(a)(3). destroyed taking pre-existing direct оf land that damages access, necessarily 2. Severance derive from the relation remain- affected ship part taken tract as the to the entire Linnecke, at 11. value. der’s market latter existed before the severance. 4A Nichols by abutting landowner Thus loss of access [3], Damage at 14-33. to the remainder § is, partial case or lessee of a depreciation is measured in market val damages. recoverable element of severance ue of the remainder from the which results taking. Dept. Highways State ex rel. of 972 Co., effect, plans put reopen be Buildings v. & would into could
Public Works &
Wilson
12, 19 (1976);
damage
plans
62
340
casе when those
Ill.2d
N.E.2d
his
were
impair
Highways
ex
of
v. Lin
so as to
access. No men-
Department
rel.
modified
necke,
9
such a
was limited
Nev.
2A tion was made that
6-244;
6.4442,
remaining
4A Nichols
access was
Nichols
at
cases where
§
circuitous;
14.243,
unreasonably
at 14-182 to
at 14-190 to 191.
a decrease
§
guarantees
required.
law
There
Because Alaska
severance
value was
Id.
would,
course,
damages,
question
of
no
allow a
trial on “the
be
reason to
damages
of
reopening
the amount of
and the value of
of the case unless the landowner
09.55.320;
light
initially
damages
and in
property,” AS
of
had
for limita-
strong preference
majority
this cоurt’s
trials
of
tion
access. The
de-
actions,
Inglima
by adding
eminent domain
see
v. parts
Alsop
require-
Housing Authority,
Alaska State
the remaining
P.2d ment that
access be unrea-
(Alaska 1970),
damages
I would hold that
are
sonable before loss
access
land,
physical taking
whenever there is a
a jury.
evaluated
all elements of severance
are to be
question
The
when
is
jury,
assuming
considered
there is
is,
noted,
due for loss
access
as one court
supporting
damage.
evidence
such
The ma
very
unanimity
“one as to which
little
can
jority rejects
principle by holding
be found in the substantial number of deci
loss of access
are not recoverable
jurisdictions. Depart
sions” from other
remaining
unless the
access is unreasonable
Buildings
ment
Public Works &
Wilson
as a matter of law.
Co.,
12, 14 (1976).
&
Ill.2d
N.E.2d
majority
my view,
approach
imposed
is inconsistent
In
can
order
be
Alsop
by classifying
on loss of access cases
them
1976). Alsop supports
proposition
categories:
(1)
into two broad
cases in
an abutting
par-
land,
owner
is
property
taking
whose
is no
which there
road
tially
access;
taken
impairment
changes
can claim
diminish
even
taking
cases in
partial
which there is a
unreasonably
is not
Alsop,
previously
circuitous.
In
corollary
land and a
loss of
held that an
owner who had
аccess.3 This distinction
is critical.4
taken,
cases,
of his
and then settled
latter
for loss of direct
with the
believing
highway
allowed,5
state
certain
access is
as measured
the jury.
”
subgroup
category would,
ing
(foot-
3. A
of this
include
of his land .. ..
omitted).
is a
which there
note
existed,
g.,
6.45,
but no direct access
People
e.
2A Nichols
at 6-312.
Dept.
ex
Dept.
rel.
of Public
Works Home
Colorado decision of
Co.,
Cal.Rptr.
(Cal.
Davis,
Trust Invest.
Highways
(Colo.1981),
973
former,
Highway,
taking
constituted a
compensation depends on the
Seward
In the
the
ac-
the
severity
prior
damaging
plaintiff’s property
of
restriction on
of
question
cess,6
recognized
this is a mixed
of
We
rights.
and while
that B & G Meats
fact,
initially
by the
right
law and
it is
resolved
High
had a
of access to the Seward
court.
it did
way, even
not abut that road.
held, however,
We
of access
categories
of the
a case
which
two
damaged by
had not been taken or
of
within determines the role
the court
falls
change
directional
because
ac
reasonable
taking
Where
is no
of
jury.
and the
there
ruled,
Thus
сess remained.
we
a matter
land,
compensation
and one claims
law,
compensable
that no
claim was
access,
question is
initial
whether
e.,
taking
presented,
there was no
i.
presented.
compensable claim is
See Wern
required compensation. Significant
which
State,
1191,
(Alaska
v.
1201
berg
516 P.2d
ly,
B
did
involve
actual
& G Meats
Commission,
1973); Ray
Highway
v. State
land,
taking of
if did not involve an abutt
280,
denied,
278,
13, 410 P.2d
cert.
196 Kan.
er,7
and it did not involve
diminish
43,
820,
underlying a example. business is an Be- necessarily
cause such do losses or even
usually flow from the condemnation of approved we have placing a risk of
non-persuasion on the condemnee as to that
claim. Thus the landowner in such case is
required to profits detail lost with reasona- certainty (j.
ble and to establish causation e., because the necessarily losses do not Hammer, taking).
result from the
at 827. necessarily 8. B resulted Because & Meats did G not involve from the physical the condemnation in that the state took loss of access there strip provided of land whiсh were element of severance access, and, further, explicitly took all general damages necessarily therefore not re- rights. stated, complaint part: Its sulting case, complained from the of action. In that damage merely a claim of due di- hereby “PLAINTIFF condemns and takes change relatively rectional traffic flow rights from the DEFENDANTS all damage unusual and appurtenant did not result from easements to the DEFEND- physical property, just remaining special property by ANTS abutting iting as with other reason of its highway, damages. including said Thus where there is no it is without lim- foregoing, rights ingress appropriate place non-persuasion all to or risk egress DEFENDANTS the landowner. property contiguous hereby to the lands con- veyed highway.” to or from said