Darnall v. State

108 N.W.2d 201, 79 S.D. 59, 1961 S.D. LEXIS 2

• Court: South Dakota Supreme Court
• Decided: March 3, 1961
• Docket: File 9859
• Status: Published

Opinions

BIEGELMEIER, J.

This is what plaintiff terms an inverse condemnation action against the state of South Dakota and the members of the State Highway Commission for damages for claimed loss of access to a highway. Plaintiffs are the owners of three lots on the edge of the village of Piedmont with 150 feet of frontage on the west side of First Street; on these were a small cafe,, a two-unit and a four-unit cabin and a gas pump. The street was 80 feet in width and designated as U. S. Highway 14 and State Highway 79. It had a blacktop surface of standard width with two lanes of travel from which motorists could drive into plaintiffs’ property. Most of plaintiffs’ business came from tourists in summer and some truckers during the year. In 1958 the state took proceedings to construct Interstate Highway No. 90 in that vicinity as a controlled-access highway with two separated roads of two lanes each. In this construction the blacktop surface of Highways 14 and 79 was not changed, except to remove the old surface and replace it with a new blacktop surface at the same level and width; neither was any change made which in any way interfered with or limited the access of plaintiffs to Highways 14 and 79 or persons using it. The construction of which plaintiffs complain is that a concrete curb and gutter was installed on the east side of this two-lane blacktop surface, which separated Highways 14 'and 79 from the new Interstate. This curb and another about two feet farther east enclose a blacktopped walkway; they prevent traffic on 14 and 79 from entering the Interstate and prevent traffic on the Interstate from entering 14 and 79, except at two interchanges nearly a mile north and south of plaintiffs’ property. The exact location of these curbs does not appear nor was it shown that they occupied any part of the property to which plaintiffs had title subject to the easement for street or highway purposes. As owners of the land bounded by a road or street plaintiffs are presumed to own to the center of the way unless the contrary be shown. SDC 51.0704. This burden was on plaintiffs and it will be presumed that the original highway was laid out half on each owner. SDC 1960 Supp. 28.0113. There was no interference with or change in the highway on the west side or of any part of the traveled portion. The evidence indicates that only the former 'ditch on the east side of the traveled and blacktopped surface of the highway was occupied by the Interstate highway. The southbound and the northbound roads of the Interstate were separated from each other by a ditch. Traffic regulations and signs require the northbound traffic to drive on the east road of the Interstate; this diverts all northbound traffic to it, and with the ditch prevents such traffic from crossing over to plaintiffs’ property; all of this road was constructed completely to the east of the old highway right of way.

Trial to a jury resulted in a verdict for plaintiff for $7,000 upon which a judgment was entered against the state. The assignments of error challenge the court’s instructions, denial of the state’s motion for a directed verdict, for judgment notwithstanding the verdict and the judgment.

Division I. At oral argument the question of sovereign immunity was raised by a member of the Court. It was not argued in the briefs. Immunity of a sovereign state may not be waived by its attorneys, Arkansas State Highway Commission v. McNeil, 222 Ark. 643, 262 S.W.2d 129, or Attorney General, Dunn v. Schmid, 239 Minn. 559, 60 N.W.2d 14. This court may raise the point of its appellate jurisdiction on its own motion, Chicago, M. St. P. & P. R. R. Co. v. Board of Railroad Commissioners, 64 S.D. 297, 266 N.W. 660; and this applies to the jurisdiction of the trial court with equal force. See O’Neal v. Diamond A Cattle Co., 63 S.D. 481, 260 N.W. 836. By the appeal, an appellate court acquires jurisdiction sufficient to determine that the trial court had or lacked jurisdiction. Beadle County v. Board of County Commissioners, 62 S.D. 86, 251 N.W. 816. That an action cannot be maintained against the state in the absence of statutory or constitutional authority has been long accepted by the courts. Griffis v. State, 68 S.D. 360, 2 N.W.2d 666. It is not an inherent right. Sigwald v. State, 50 S. D. 37, 208 N.W. 162. We have had occasions to deal with it in several other cases. Kansas City Bridge Co. v. State, 61 S.D. 580, 250 N.W 343; Alexander v. State, 74 S.D. 48, 48 N.W.2d 830.

Division II. Art. YI, § 13 of the State Constitution declares “Private property shall not be taken for public use, or damaged, without just compensation as determined by a jury * * The power of eminent domain is an inherent right vested in a sovereign state as a necessary attribute thereof. 5 Am.Jur., Eminent Domain, § 7. It has long been established that it was unlawful to take private property for a public use without due compensation even where there was no such constitutional limitation. Hyde v. Minnesota, D. & P. R. Co., 29 S.D. 220, 136 N.W. 92, 40 L.R.A.,-N.S., 48. Art. III, § 27 of the Constitution reads “The legislature shall direct by law in what manner and in what courts suits .may be brought against the state”. Under these and similar constitutional provisions, courts have differed as to whether common-law actions may be brought against the state where express consent has not been given. The following indicate their differing viewpoints: Rose v. State, 19 Cal.2d 713, 123 P.2d 505; Tomasek v. State, 196 Or. 120, 248 P.2d 703; Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695; Sale v. State Highway and Public Works Commission, 242 N.C. 612, 89 S.E.2d 290; State v. Leeson, 84 Ariz. 44, 323 P.2d 692; Angelle v. State, 212 La. 1069, 34 So.2d 321, 2 ; Schmutte v. State, 147 Neb. 193, 22 N.W.2d 691; State ex rel. Oklahoma State Highway Comm. v. Alford, Okl., 347 P.2d 215; Weir v. Palm Beach County, Fla., 85 So.2d 865. The conflict is pointed out and the cases with constitutional provisions are reviewed in Springville Banking Co. v. Burton, 10 Utah 2d 100, 349 P.2d 157. Some of the courts hold the eminent domain provision self-executing and allow the suit against the state as an action at common law, that the failure of the legislature to provide a remedy would make the constitutional provision a hollow mockery instead of a safeguard for the rights of citizens. Apparently plaintiffs chose this action at law under the authorities permitting it. At the same time this court had before it on appeal the contention by the same counsel that injunction was the proper remedy. Fauske v. Dean, —S.D.—, 101 N.W.2d 769, 771. There the court recognized the right to an injunction (although denying it on other grounds) where a remedy at law was not available; the phrase used was “action at law” and referred to a common-law action in circuit court. If no remedy were available the question of the right to such an action would be presented. However, the legislature in this state has provided a remedy in SDC 1960 Supp. 33.0604. There the state has given consent to be sued in the Supreme Court upon a just claim against it which the state auditor has refused to allow. The claimant is required to file a cost bond of $500 with the complaint. “The trial of such action shall be conducted in accordance with * * * any special rule or order made for trial of the particular case by the Supreme Court.” This section requires payment of the judgment entered out of the State Treasury. By reason of Art. XI, § 9 of the Constitution which provides no money shall be expended or warrant drawn on the state treasurer except in pursuance of an appropriation for the specific purpose first made this court, in Sigwald v. State, 50 S.D. 37, 208 N.W. 162, came to the conclusion that section did not authorize a suit upon a claim for the payment of which there was no available appropriation. As heretofore indicated, plaintiffs did not pursue this remedy but commenced their action in the circuit court which had neither jurisdiction of it nor jurisdiction to enter judgment against the state.

Turning to SDC 1960 Supp. 28.0231 authorizes the State Highway Commission to locate, construct, operate and maintain the South Dakota sections of the Interstate Highways; 28.0233 authorizes the commission to determine its location, acquire right of way and land under SDC 1960 Supp. 28.13A, designate locations of and establish, limit and control points of ingress and egress to ensure their proper operation, prohibit entrance to or egress from them at points not so designated and construct grade separations at intersections; 28.0235 authorizes the use of state highway funds for construction of the Interstate System; 28.13A01 makes it the duty of the state by and through the State Highway Commission to acquire and pay for any land or easements therein for right of way and 57.3814 appropriates funds for the construction, reconstruction, maintenance and repair of highways under the jurisdiction of the commission. When a conventional highway is established, an abutting owner has a right separate and distinct from that of the general public to its use. This includes the right of access, ingress and egress to the highway subject only to the easement of the public. Edmison v. Lowry, 3 S.D. 77, 52 N.W. 583, 17 L.R.A. 275. It is a separate property right which cannot be extinguished without compensation, State, By and Through State Highway Comm. v. Burk, 200 Or. 211, 265 P.2d 783; it is land or a property right in land that plaintiffs allege has been taken or damaged by the state. If it has, plaintiffs have a just claim against the state (SDC 1960 Supp. 33.0604) for which an appropriation has been made (Sigwald v. State, supra) and for which an action may be commenced in the Supreme Court. Where a state or an agency thereof acting in a sovereign capacity takes or damages private property for public use without exercising the power of eminent domain, it cannot evade the constitutional provision which guarantees the right to compensation but will be obligated to pay the same as if it had proceeded under that power. See Mayer v. Studer & Manion Co., 66 N.D. 190, 262 N.W. 925 referred to in Bogue V. Clay County, 75 S.D. 140, 60 N.W.2d 218. The Constitution should bind officers and agents of the state and the state should not by indirect action be permitted to violate it. It expects and demands compliance by its citizens and they have the correlative right to expect that from the state.

Division III. We now come to the disposition to be made of this action. Had it been commenced in this court an order would have been entered directing a jury trial in a circuit court. This follows from two provisions of our Constitution.

Art. V, § 3 states that no jury trials shall be allowed in the Supreme Court, but in proper cases questions of fact may be sent to a circuit court for trial before a jury. Art. VI, § 13, supra, requires that private property shall not be taken for public use or damaged without just compensation as determined by a jury. That the 1939 Code omitted the provision in § 2111 of the 1919 Code that issues of fact, which the Supreme Court deemed necessary to be tried by a jury, should be certified to- the circuit court for trial and authorized the Supreme Court by order to provide for the trial in no way modified either constitutional right of a plaintiff. A waste of time and money would result if we required plaintiffs t-o- commence their action in this court, retry it in circuit court and have the record returned here for final disposition. It is consonant with justice that we assume this action was commenced in this court as required and express our views on the merits upon the complete record now before us.

Division IV. Here there was no physical taking of any part of -plaintiffs’ real estate as was involved in State Highway Commission v. Bloom, 77 S.D. 452, 93 N.W. 2d 572 or Schuler v. Board of Supervisors, 12 S.D. 460, 81 N.W. 890, where severance damages were permitted. As recently as 1958 in the Bloom case, this court quoted from Hyde v. Minnesota, D. & P.Ry. Co., 29 S.D. 220, 136 N.W. 92, 99, 40 L.R.A.,N.S., 48, stating the rights of an abutting owner. In the Hyde case the court was speaking of the Closing of a street in a block beyond that which plaintiff’s property abutted. In the case at bar no part of the highway used by motor vehicles was closed or interfered with; two-lane traffic in both directions may still continue on it as before. Plaintiffs have the same access to the system of highways, including the Interstate as the general public. Their only complaint is that they do not have direct and immediate access to the new Interstate Highway; and inversely, that travelers on it do not have the unrestricted right of direct access to their business establishment. Motor vehicles traveling in a northerly direction in the east segment of the Interstate are now prevented from direct access to plaintiffs’ property; this results from the separation of the two roads by a ditch and a regulation requiring northbound vehicles to travel on it. Such traffic may reach plaintiffs’ property by use of either interchange; this requires circuity of travel. Circuity of travel is not a compensable damage under these Circumstances; it is a burden shared by all the traveling public. Judge Whiting gave such an illustration in the Hyde case, supra. See also State ex rel. Merritt v. Linzell, 163 Ohio St. 97, 126 N.E.2d 53.

The construction of a highway past a place of business gives owners no vested right to insist that it remain there as a changeless road in a changing world. Holloway v. Purcell, 35 Cal.2d 220, 217 P.2d 665; no legal damage results though the traffic may be diverted by authorities and incidental loss result. A highway may be relocated either by marking or construction which would direct traffic some distance away from a business mainly dependent on it. Our statutes recognize, and permit this with some limitations not here pertinent. SDC 1960 Supp. 28.0210-11 and SDC 1960 Supp. 28.09A.

Control of access and roadside development have been found to be necessary for safety and efficiency on modern highways. The collision of this right of access of an abutting owner and the police power of the states to regulate streets and highways and traffic thereon have been before the courts many times. “In some degree those opposed policies are manifested in the conflict between the constitutional mandate that compensation be paid when private property is taken or damaged for a public purpose and the exercise of police power where compensation need not be paid. The line between those two concepts is far from clearly marked.” Bacich v. Board of Control of State of California, 23 Cal.2d 343, 144 P.2d 818, 823. The right of ingress and egress has been held to be subject to reasonable regulations in the public interest and for the promotion of public convenience and necessity. City of Neenah v. Krueger, 206 Wis. 473, 240 N.W. 402. Put another way it has been declared to be a reasonable or convenient access and not access at all points along the highway. Iowa State Highway Commission v. Smith, 248 Iowa 869, 82 N.W.2d 755, 73 A.L.R.2d 680. While they may adversely affect an established business, relocations of a highway, prohibitions against crossing it or against left and U turns, the designation of one-way streets and other similar restrictions and regulations have been upheld as proper exercises of the police power of the state and not of the power of eminent domain. As such they are not compensable. See the Smith case, supra, and cases cited therein. 11 McQuillin, Municipal Corporations, 3rd Ed., § 32.27, p. 319; State, By and Through State Highway Comm. v. Burk, 200 Or. 211, 265 P.2d 783; Tomlin v. Town of Las Cruces, 38 N.M. 247, 31 P.2d 258, 97 A.L.R. 185; State v Ensley, Ind., 164 N.E .2d 342; Springville Banking Co. v. Burton, 10 Utah 2d 100, 349 P.2d 157; Board of Com’rs of Santa Fe County v. Slaughter, 49 N.M. 141, 158 P.2d 859; Carazalla v. State, 269 Wis. 593, 70 N.W.2d 208, 71 N.W.2d 276; 25 Am.Jur., Highways, § 263; 40 C.J.S. Highways § 232; notes in 97 A.L.R. 185; 118 A.L.R. 921 and 43 A.L.R.2d 1072. Curbs or median strips dividing a street or highway which prevent motorists from crossing it to reach a motel or garage, except by a more circuitous route, have been approved and held not to be basis for an award of damages. Holman v. State, 97 Cal.App., 2d 237, 217 P.2d 448; City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S.W.2d 187; Brady v. Smith, 139 W.Va. 259, 79 S.E.2d 851. Though one change is accomplished by signs and the other by construction, both are based on the police power of the state; both bring the same result and are damnum absque injuria. Archer v. City of Los Angeles, 19 Cal.2d 19, 24, 119 P.2d 1, 4. Many of the ramifications of the problems arising from the Interstate Highway program are to be found in 43 Iowa L.Rev. 258; 38 Neb.L. Rev. 377, 407; 1959 Wis. L.Rev. 561.

It is clear that construction of the new highway and separate road to the east of Highways 14 and 79 and the diversion of all northbound traffic over it gave plaintiffs no legal basis for damages, even though such traffic, having chosen to continue north on it,, was prevented by a ditch and restrictions from direct access or the right to cross over to plaintiffs’ property. This diverted all northbound motorists away from plaintiffs’ property with the resultant loss of their business. So the construction of the west section of the new road immediately east of the traveled portion of Highways 14 and 79 and the diversion to it of southbound traffic at some point beyond their property, with the same restrictions and a curb preventing motor vehicles from direct access, did not violate any right of plaintiffs, as they have no right to the continuance of such traffic. Yet for this, in effect, is what plaintiffs contend. Their right of access, of ingress and egress from Highways 14 and 79 remains as it was and from it they have access to all streets and highways. The state has not reconstructed or converted Highways 14 and 79, as plaintiffs claim, into a controlled-access highway so as to prevent or even reduce their use of it. Even assuming part of the east ditch was used in the new construction, this did not interfere with plaintiffs’ right of access to the highway upon which their property abuts.

Claimed interference with an abutter’s access and rights in the street or highway were considered in Warren v. Iowa State Highway Commission, 250 Iowa 473, 93 N.W.2d 60; Williams v. Carey, 73 Iowa 194, 34 N.W. 813; Bigley v. Nunan, 53 Cal. 403, cited by Justice Traynor in Bacich v. Board of Control of State of California, supra, 144 P.2d 818, at page 836 and Riddle v. State Highway Comm., 184 Kan. 603, 339 P.2d 301. Plaintiff strongly relies on McMoran v. State, 55 Wash.2d 37, 345 P.2d 598. The opinion in State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 350 P.2d 988, 992 cited the McMoran case, then referring to State v. Peterson, 134 Mont. 52, 328 P.2d 617 said:

“It seems to be the law, however, that where land is condemned or purchased for the construction of a Controlled-access highway upon a new right of way alongside the old road that an abutting owner of land on the old highway, which is retained as a service road, cannot recover damages for destruction or impairment or loss of access for the reason that his access to the old highway ■has not been disturbed in the slightest degree.”

The same view, though dictum, is expressed in Heil v. Allegheny County, 330 Pa. 449, 199 A. 341, at page 344. See also Board of Com’rs of Santa Fe County v. Slaughter, 49 N.M. 141, 158 P.2d 859; People v. Gianni, 130 Cal. App. 584, 20 P.2d 87. We conclude that where there is no physical taking and the owner’s access to the highway on which he abuts is not unreasonably diminished or interfered with, his loss is due to diversion of traffic, a lawful exercise of the police power and there can be no recovery.

Section 13 of Art. VI of the State Constitution creates no property rights; it protects those that already exist. That which was damnum absque injuria before the adoption of the “or damaged” clause remains the same. Speaking of these words in the California Constitution, it was said: “If the property owner would have no cause of action were a private person to inflict the damage, he can have no claim for compensation from the state.” Archer v. City of Los Angeles, 19 Cal.2d 19, 24, 119 P.2d 1, 4. A property right must be invaded before compensation is allowed. No such invasion appears here. Hyde v. Minnesota, D. & P. Ry. Co., supra. The cause is remanded to the trial court with directions to vacate the judgment and dismiss the action.

SMITH, P. J., and HANSON, J., concur. ROBERTS, J., dissents in part. RENTTO, J., dissents.