Aust v. Marcello

310 A.2d 758, 112 R.I. 381, 1973 R.I. LEXIS 996
CourtSupreme Court of Rhode Island
DecidedNovember 2, 1973
Docket1892-Appeal
StatusPublished
Cited by14 cases

This text of 310 A.2d 758 (Aust v. Marcello) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aust v. Marcello, 310 A.2d 758, 112 R.I. 381, 1973 R.I. LEXIS 996 (R.I. 1973).

Opinions

[382]*382Doris, J.

The petitioners, the owners of a parcel of real estate fronting on the westerly side of Killingly Street, a public highway, partly in the city of Providence and partly in the town of Johnston, bring this bill in equity against the respondent, the State Director of Public Works. They pray that either the respondent be restrained from interfering with their access to the public, highway contiguous to their property and from constructing any. fence or.barrier that interferes with such right of access or, in the alternative, just compensation be awarded to the petititioners for the loss of access to said property.

. After hearing, before a justice of the Superior Court, a : decision was rendered for respondent for costs, wherein .the trial justice found that if damages were to be awarded , the award to petitioners should be in the amount of $3,000. Judgment was thereupon entered for respondent with costs. [383]*383The cause appears before us on petitioners’ appeal from that judgment.

Acting pursuant to the authority contained in G. L. 1956 (1969 Reenactment) ch. 6 of title 37, and G. L. 1956 (1968 Reenactment) ch. 10 of title 24, respondent on or about October 26, 1961, filed in the office of the recorder of deeds of the city of Providence a description of the land and a plat thereof with a statement that the property therein described was being taken for highway and freeway purposes, and on or about October 13, 1961, said respondent filed in the office of the town clerk of the town of Johnston a description of the land and a plat thereof with a statement that the property therein described was being taken for highway and freeway purposes.

On the dates stated petitioners were the owners of land contiguous to Killingly Street so-called, a public highway, to which petitioners had unlimited access. The respondent filed the plats in conjunction with the plan of the state of Rhode Island to construct a freeway highway, so-called, whereby included in the taking was Killingly Street up to the property line of petitioners. As proposed by the plat, petitioners, according to their testimony, were deprived of access to the highway for a distance of approximately 94' feet. The respondent, while denying any taking, admitted that if a taking were found the distance involved was approximately 80 feet rather than the 94 feet as contended by petitioners.

The petitioners presented testimony through a real estate expert, Angelo Iannitelli, that their property abutting the highway had a market value of $28,000 before the taking and a market value of $10,000 less after the taking. The respondent presented a real estate expert, Richard W. Jalbert, who testified'that petitioners’property had a market value of $28,000 to $30,000 before the taking and that the [384]*384taking resulted in a ten per cent loss in the market value of the property.

The trial justice in his decision found that respondent had established a line for freeway1 purposes for a distance of 80 feet contiguous to petitioners’ property and thereby had precluded petitioners from free access to that part of the highway. He further found that respondent had established a line for state highway2 purposes for a distance of 65 feet contiguous to petitioners’ property, but that said action did not interfere with petitioners’ free access to that part of the highway.

The trial justice held that by taking the highway to the property line for freeway purposes, the state precludes petitioners from entering the freeway or ány párt thereof. He further held that petitioners have full access to that part of the highway designated as a state' highway. Honig v. Director of Public Works, 106 R. I. 199, 258 A.2d 73 (1969) ; Murphy v. Director of Public Works, 103 R. I. 451, 238 A.2d 621 (1968). The-trial justice also concluded that petitioners were thereby left with free access to the state highway along, a 65-foot portion of their frontage and were able to use the same driveway to enter and leave their property that they had used before the line was established. The trial justice held that petitioners had reasonable access to< their property and therefore there had [385]*385been no taking which was compensable under art. I, sec. 16, of the constitution of this state.3

In his decision, the trial justice cited and relied on a line of New Jersey cases which follow the rule that where a taking results in a reasonable access to the highway rather than a direct access which existed before the taking, no compensable injury results. Tubular Service Corp. v. Comm’r of the State Highway Dept., 77 N.J. Super. 556, 187 A.2d 201 (1963), aff’d 40 N.J. 331, 191 A.2d 745 (1963). Mueller v. New Jersey Highway Authority, 59 N.J. Super. 583, 158 A.2d 343 (1960).

The rule applied by the trial justice was recognized in this state as early as 1929 in Allen & Reed, Inc. v. Presbrey, 50 R.I. 53, 144 A. 888 (1929). In that case the complainant was the owner of a triangular tract of land in downtown Providence and conducted thereon a business which required considerable loading and unloading of merchandise. The police, pursuant to a traffic ordinance, had established no-parking areas and one-hour-parking areas along the curb on two sides of the triangle but left unrestricted the third side. This court held that even though such regulation had impaired the easement of access, the complainant, having been left with reasonable access to its property, was not entitled to compensation. See also Newman v. Mayor of Newport, 73 R.I. 385, 57 A.2d 173 (1948).

The general rule in this state, then, is that where, in an exercise of police power, the right of access to land abutting upon a highway is impaired or diminished, such act is not a confiscatory taking requiring compensation unless the impairment or diminution is so substantial as to leave the property owner without reasonable access to his property. Allen & Reed, Inc. v. Presbrey, supra.

[386]*386We have concluded however, that as a result of the enactment of §24-10-34 this rule is not applicable to cases in which easements of access to land abutting upon such a highway are extinguished by reason of the inclusion of the existing highway within a freeway line. The statute which was enacted in 1937 provides that where such an existing highway is included within a freeway, the existing easements of access therein may be extinguished by purchase or by taking under eminent domain. We are of the opinion that the statute constitutes a legislative declaration of public policy concerning compensability to land owners where easements have been extinguished by such an exercise of the police power and should therefore be afforded great significance.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Melrose Fish & Game Club, Inc. v. Tennessee Gas Pipeline Co.
52 N.E.3d 1089 (Massachusetts Appeals Court, 2016)
Horn v. Southern Union Co.
927 A.2d 292 (Supreme Court of Rhode Island, 2007)
E & J Inc. v. Redevelopment Ag. of Woonsocket
405 A.2d 1187 (Supreme Court of Rhode Island, 1979)
Flather v. Norberg
377 A.2d 225 (Supreme Court of Rhode Island, 1977)
Bailey v. Huling
377 A.2d 220 (Supreme Court of Rhode Island, 1977)
D'AGOSTINO v. Doorley
375 A.2d 948 (Supreme Court of Rhode Island, 1977)
Saints Sahag & Mesrob Armenian Church v. Director of Public Works
360 A.2d 534 (Supreme Court of Rhode Island, 1976)
J. M. Mills, Inc. v. Murphy
352 A.2d 661 (Supreme Court of Rhode Island, 1976)
Narciso v. State
328 A.2d 107 (Supreme Court of Rhode Island, 1974)
Parillo v. Director of Public Works
312 A.2d 198 (Supreme Court of Rhode Island, 1973)
Aust v. Marcello
310 A.2d 758 (Supreme Court of Rhode Island, 1973)

Cite This Page — Counsel Stack

Bluebook (online)
310 A.2d 758, 112 R.I. 381, 1973 R.I. LEXIS 996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aust-v-marcello-ri-1973.