Mason v. State

656 P.2d 465, 1982 Utah LEXIS 1119

• Court: Utah Supreme Court
• Decided: November 15, 1982
• Docket: 17744
• Status: Published

Opinions

OAKS, Justice:

This controversy over the ownership of land underlying an abandoned highway across appellant’s property presents two questions: (1) When the State acquired the disputed strip by warranty deed, did it acquire a fee simple interest or only an easement? and (2) Does the abutting landowner (appellant) have a private easement along some part of the abandoned highway?

Appellant conveyed the land in question to the State by warranty deed in 1951. The deed described a strip of land across appellant’s property. Highway 191 was thereafter constructed across this strip of land. In 1976, after a new freeway was constructed, the State formally abandoned Highway 191, informing appellant that if he did not buy the strip of land for $3,675, it would be sold to a third person. Appellant paid the sum to the State under protest. About that time, the State tore up and destroyed portions of the abandoned highway. Appellant had used this highway for over 20 years to travel to Plymouth on the south and to Malad, Idaho, on the north.

In 1978, after filing notice with the State pursuant to U.C.A., 1953, § 63-30-12, appellant brought this action seeking (1) a judgment against the State for the return of his $3,675, plus interest, as well as an order restraining the State from conveying the disputed strip to any third party, and (2) a judgment requiring the State to restore the portions of Highway 191 that had been impaired, torn up, or blocked. The district court granted the State’s motion to dismiss both causes of action, and this appeal followed.

I. CONVEYANCE OF FEE SIMPLE OR EASEMENT

Appellant’s claims for return of the $3,675 purchase price and a restraining order are based on the contention that in 1951 the State acquired only a right-of-way, not a fee simple interest, in the disputed strip. This contention relies on two statutes in effect in 1951.

The first, U.C.A., 1943, § 104-61-2, is part of the chapter on eminent domain. It states in pertinent part:

The following is a classification of the estates and rights in lands subject to be taken for public use:

(1) A fee simple, when taken for [purposes unrelated to the instant case].

(2) An easement, when taken for any other use. [Emphasis added.]

Since the disputed strip was conveyed to the State by warranty deed, it was not “taken for public use” within the meaning of this statute having to do with condemnation proceedings and eminent domain. Consequently, this statute does not direct the outcome of this case.

Appellant also relies on a statutory provision in the chapter on “Highways,” U.C.A., 1943, § 36-1-7. This section, which was repealed in 1963 but which was in effect at the time the disputed land was acquired, states:

By taking or accepting land for a highway the public acquires only the right of way and incidents necessary to enjoying and maintaining it.¹ [Emphasis added.]

Appellant argues that under this section the State was statutorily incapable of acquiring a fee simple interest in land “for a highway” and therefore only acquired an easement under appellant’s 1951 warranty deed.

The key issue on the applicability of § 36-1-7 is the meaning of “accepting.” Appellant argues that “accepting” should be read broadly to embrace the receipt of a deed in a negotiated purchase. The State contends that in this context the word “accepting” should be construed to refer solely to accepting land dedicated by usage as a highway. Neither party cites any Utah precedents conclusively construing this statute on the issue before us.² Considering this statute in light of its apparent purpose and the desirability of harmonizing its meaning with that of other statutes, we conclude that the construction advocated by the State and adopted by the district court is the correct one.

The history recited in Justice Howe’s concurring opinion is persuasive evidence that the word “accepting” in the quoted sentence of U.C.A., 1943, § 36-1-7, was intended to refer only to highway lands received by dedication. As to highway lands received in that manner, the statute was therefore declaratory of the common law: the original owner retained the fee, and the public acquired only an easement. Barclay v. Howell’s Lessee, 31 U.S. (6 Pet.) 498, 512, 8 L.Ed. 477 (1832). But there is nothing in the history or interpretive decisions to suggest that this statute was meant to apply to lands the State acquired by warranty deed. In fact, such an interpretation would conflict with another early statute prescribing the effect of warranty deeds as passing a fee simple title, U.C.A., 1953, § 57-1-12, and it would also deny the State a power (to acquire fee simple title) routinely exercised by individuals and corporate bodies. Being unwilling to accept either of those results without statutory language more compelling than we have in this case, we conclude that § 36-1-7 did not prevent the State from acquiring a fee simple title under appellant’s warranty deed to this strip of land in 1951. For the reasons stated here and in Justice Howe’s concurring opinion, the district court’s order dismissing appellant’s action for the return of his $3,675 and for other relief related to his claimed ownership of the land will therefore be affirmed.

II. ABUTTING LANDOWNER’S EASEMENT OVER ABANDONED HIGHWAY

Appellant’s second cause of action alleged that he “has used [Highway 191] continuously since 1953 for access to and from his land, and has no other direct, convenient route from his land to the towns of Plymouth [Utah] on the South and Malad [Idaho] to the North.” Appellant does not dispute that the State could legally abandon and cease to maintain Highway 191, but he argues that its blocking or destroying portions of the highway impaired his private easement of access to and along the abandoned way. The record contains no information on appellant’s access to the expressway or frontage roads, on natural obstacles, or on the relative distances he had to travel before and after the abandonment of Highway 191.

Except where changed by statutes pertaining to limited access highways, U.C.A., 1953, § 27-12-2(5), § 27-12-111,³ an abutting landowner has a private easement of ingress and egress to existing public highways. Bailey Service & Supply Corp. v. State Road Commission, Utah, 533 P.2d 882, 883 (1975); Utah Road Commission v. Hansen, 14 Utah 2d 305, 309, 383 P.2d 917, 919 (1963); State Road Commission v. Rozzelle, 101 Utah 464, 467, 120 P.2d 276, 278 (1941); Sail v. City of Colorado Springs, 161 Colo. 297, 301, 423 P.2d 11, 13 (1966).⁴

This private easement of access has been held to survive the abandonment or vacation of the public highway. Adney v. State Road Commission, 67 Utah 567, 248 P. 811 (1926); Hague v. Juab County Mill & Elevator Co., 37 Utah 290, 107 P. 249 (1910); Sevener v. Faulkner, 253 Ark. 649, 488 S.W.2d 316 (1973); Paul v. Wissalohican Camp Co., 104 Ohio App. 253, 148 N.E.2d 248, 250 (1957); 39 Am.Jur.2d Highways, Streets, and Bridges § 185 (1968); Annot., 150 A.L.R. 644, 657 (1944). Since appellant’s second cause of action invoked this principle with “fair notice of the nature and basis of the claim asserted and a general indication of the type of litigation involved,” Blackham v. Snelgrove, 3 Utah 2d 157, 161, 280 P.2d 453, 455 (1955); Christensen v. Lelis Automatic Transmission Service, Inc., 24 Utah 2d 165, 168, 467 P.2d 605, 607 (1970), it should not have been dismissed for failure to state a claim.

The State suggests two other possible grounds to support the dismissal of appellant’s second cause of action: (1) newly constructed roads provide appellant equal or better access to his property, and (2) appellant has already received compensation for any loss of access to his property. Both these grounds raise issues of fact and therefore cannot support a dismissal, which requires a showing “that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the claim.” Christensen v. Lelis Automatic Transmission Service, Inc., supra. Both these defenses remain for consideration on remand.

Since this cause of action must be remanded for further proceedings, we deem it appropriate to clarify the nature and extent of the abutting landowner’s easement of access and its relation to the rights of other property owners along the way. We limit our comments to matters that are likely to be germane in the resolution of this controversy.

Hague v. Juab County Mill & Elevator Co., supra, held that the enlargement of a flume between the abutting property and a partially abandoned public street violated the property owner’s right to “a reasonably convenient passageway” from his property to the street. 37 Utah at 295, 107 P. at 251. The Court declared:

While the public may abandon a street or highway in so far as it affects the rights of the public therein, such an abandonment, however, will not affect the rights of the abutting owner with respect to the use of an easement he may have in the street for the purposes of ingress and egress to and from his premises.

37 Utah at 296, 107 P. at 252. This decision established that the abandonment of a public way will not deprive an abutting landowner of whatever “easement he may have in the street for the purposes of ingress and egress to and from his premises.” But it did not define the nature, the extent, or the prerequisites of the “easement he may have.” For example, the Court’s opinion does not reveal whether this landowner had any other access to the property abutting the street or how his easement related to the portion of the street that was abandoned and the portion that was not.

In Adney v. State Road Commission, supra, the State, as part of the construction of a new highway, had attempted to abandon a 3.72-mile segment of old highway near the town of Corinne, and to remove its bridge over the Bear River. Although the new highway would afford the general traveling public better access through the area, farmers whose lands abutted the old road objected to the removal of the bridge because this would deprive them of reasonable access to Corinne. This Court concluded that the plaintiffs could maintain their action because they had established “such a special damage as is different in kind and not merely in degree from that which will be suffered by the general public....” 67 Utah at 572, 248 P. at 812. The Court explained that conclusion as follows:

[T]he evidence shows and the court found that the old road was necessary for ingress and egress to and from the farms owned and occupied by the individual plaintiffs and others abutting the old road east of the bridge, and that without the bridge they had no means of ingress and egress to and from their farms, or to Corinne city ... except as they [backtrack] ... a distance of several miles. [Emphasis added.]

67 Utah at 571-72, 248 P. at 812. The finding that the old highway was “necessary for ingress and egress” from the landowner’s property established the existence and defined the extent of the easement recognized in Adney. From the facts of that case, it is evident that the measure of “necessary” was relative: the landowners did not need to show that there was no other means of access, only that the alternative access imposed measurable hardship that was unreasonable under the circumstances. Conversely, it has been held that an abutting property owner cannot recover damages for deprivation of access to a public way so long as there is some alternative means of access to his property that is “adequate and reasonable.” Wynia v. City of Great Falls, Mont., 600 P.2d 802, 810 (1979). To the same effect is Jacobson v. State, State Highway Commission, Me., 244 A.2d 419, 422 (1968), where the Court held:

The property owner has the right to reasonable access to the public streets but no property right that his travel from his land to his destination or the public’s travel to his property shall be in the most direct route possible.

Our interpretation of the abutting landowner’s easement of access as being subject to precedent requirements of reasonableness in the circumstances accords with what we consider the better-reasoned opinions on this subject. E.g., Rexroat v. Thorell, 89 Ill.2d 221, 60 Ill.Dec. 438, 433 N.E.2d 235 (1982); Jacobsen v. State, supra; Wynia v. City of Great Falls, supra; Pinellas County v. Austin, Fla.App., 323 So.2d 6 (1975); Mosteller v. Southern Railroad Co., 220 N.C. 275, 279, 17 S.E.2d 133, 135 (1941). See also, Bacich v. Board of Control of California, 23 Cal.2d 343, 366, 144 P.2d 818, 832 (1944) (Traynor, J., dissenting). The property owner’s right to preserve the status quo on access to and over abutting highways must be qualified by the public interest in relocating public highways for greater advantage at minimum possible cost and in facilitating the return of land to productive purposes. Thus, the abutting property owner has an easement over the abandoned highway only where (and to the extent that) it is “necessary for ingress and egress” to and from the property under the standard established in Adney and elaborated here.

The judgment of the district court is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

HALL, C.J., and DURHAM, J., concur.

1 . In contrast, the current provision, enacted in 1963, provides that title to real property acquired by “purchase, condemnation, or otherwise, for highway rights of way or other highway purposes, may be in fee simple or any lesser estate or interest.” U.C.A., 1953, § 27-12-101.

2 . This section has been construed in three opinions of this Court, but none resolves the present issue. White v. Salt Lake City, 121 Utah 134, 239 P.2d 210 (1952); Hall v. North Ogden City, 109 Utah 304, 166 P.2d 221 (1946), vacated on other grounds, 109 Utah 325, 175 P.2d 703 (1946); Brown v. Oregon Short Line Railroad Co., 36 Utah, 257, 102 P. 740 (1909).

3 . See generally, Note, “Freeways and the Rights of Abutting Owners,” 3 Stan.L.Rev. 298 (1951).

4 . The abutting owner’s right of access is not a prescriptive easement. A prescriptive easement cannot arise over land while it is subject to public use, since use in common with the general public is regarded as permissive. Thurman v. Byram, Utah, 626 P.2d 447, 449-50 (1981).