State Ex Rel. State Highway Commission v. Danfelser

384 P.2d 241, 72 N.M. 361

• Court: New Mexico Supreme Court
• Decided: August 5, 1963
• Docket: 7021
• Status: Published

Opinions

PER CURIAM.

In view of the motion for rehearing filed by appellees, supported by their brief, two exhaustive briefs filed by amici curiae, and appellant’s brief in response thereto, the original opinion is withdrawn and the following substituted:

OPINION

CARMODY, Justice.

The state appeals from a judgment in a condemnation action granting the defendants Danfelsers damages for loss of access to a highway.

The case was tried in the district court upon stipulation, from which the following appears:

The state acquired, by these condemnation proceedings, a strip of land owned by the defendants, 75 feet wide and about 770 feet long, comprising approximately 1.376 acres of land. The property taken formerly fronted upon the right-of-way of U. S. Highway 66.

Prior to the taking, there was direct access from the defendants’ land to the easterly-bound traffic lanes of what is termed in the stipulation as “old U. S. Highway 66.” The old highway was a four-laned road with a median divider, and there were no crossovers directly in front of defendants’ property. It was stipulated that Highway 66 is now renumbered as Interstate 40 and that the condemnation was necessitated for the building of Interstate 40 and its merger with old U. S. Highway 66 at the easterly city limits of the city of Albuquerque. Interstate 40 was built somewhat to the north of defendants’ property, but what was referred to as “old 66” remained substantially as it was, its being an extension of Central Avenue. However, at least at this location, it was made into a limited access road, so as to control access not only to it but to Interstate 40. The front portion of defendants’ property was taken for the purpose of constructing a two-way frontage road, by which the defendants’ prop■erty could connect with U. S. Highway 66 or Central Avenue on the west at an on-grade intersection, and to the east with a one-way connection ramp to reach Interstate 40. A chain-link fence was constructed, prohibiting traffic from entering upon the controlled-access highway except by way of the points of connection. The par7 ties also stipulated that the defendants’ land, both before and after the taking, was un-' improved and that its highest and best use-' was potential commercial and that the market value of the lands remaining had been reduced by the loss of access directly to the main-traveled portion of old U.S. 66. It was agreed that the defendants were entitled to compensation for the land actually taken in the sum of $19,264.00, and that the defendants were entitled to $15,653.00, as compensation for drainage damages to the remaining lands; and these two items of _ damage were paid for by the state prior to the appeal.

In addition to the provisions of the stipulation which have been summarized above,, the two concluding paragraphs of the stipu- . lation are as follows:

“16. That the only questions remaining to be determined in this cause • are questions of law as follows:

“(1) Is the depreciation in the market value of Defendants’ property which has been occasioned by the. loss of access directly to the main travelled portion of old U.S. 66 caused by a reasonable and valid exercise of police! power and therefore non-compensable? '

“(2) Does the construction of the two-way frontage road operate in complete mitigation of damages for loss of access ?

“(3) Does the construction of the two-way frontage road operate in partial mitigation of damages for loss of access ?

“(4) Under the facts and circumstances stipulated herein, are the damages which have been caused by the depreciation in market value of Defendants’ property by reason of loss of access directly to the main travelled portion of old U.S. 66 compensable?

“17.. That if damages are recoverable by Defendants occasioned by loss of access to their lands, the amount of such damages is agreed to be $43,-120.00.”

The trial court, based upon the stipulation, adopted the following conclusions of law:

“I.

“That the depreciation in the market value of the Defendants’ property, which has been occasioned by the loss of access directly to the main travelled portion of old U.S. 66 was in no way caused by a reasonable and valid exercise of police power and therefore the damage occasioned by said'loss of access is' compensable. •

“II.

“That the construction of the two-way frontage road does not operate to completely mitigate the damage for loss of access.

“III.

“That the construction of the two-way frontage road does operate in partial mitigation of damages for loss of access.

“IV.

“That under the facts and circumstances stipulated herein, the damages which have been caused by the depreciation in market value of Defendants’ property by reason of loss of access directly to the main travelled portion of old U.S. 66 are compensable.”

The judgment granted to the defendants the amounts hereinabove mentioned for the taking of the land and the drainage damage, and in addition awarded the defendants the agreed amount of $43,120.00 by reason of the loss of access. This appeal relates solely to the award of damages for the loss of access to the defendants’ remaining lands.

We are thus squarely faced with the question as to whether or not, under these facts, whatever damage was occasioned by loss of access is compensable. It is of importance to note that we are not here concerned with any limitation of access to Interstate 40, because the defendants’ property does not border upon it — we are only dealing with the limited question of whether the defendants are entitled to damages because their former access to Highway 66 has been taken away and a portion of their property condemned for a frontage road so as to give them entrance and exit to the road upon which they formerly fronted.

The authorities are in hopeless conflict on-this subject. It would seem that this is one phase of the law upon which courts, sometimes even within the same jurisdiction, have adopted seemingly inconsistent views, and, in addition, in almost all of the cases, there are either vigorous dissents or special concurring opinions which join in the result only. There seems to be a radical difference in viewpoint among justices who have been required to rule upon the point. This conflict is so pronounced that most of the cases contain lengthy dissertations expounding the views of the author of the opinion or the dissent.

In an effort to avoid encumbering the law books to an additional extent, we propose to state the rules that are apparently followed in the jurisdictions which have determined the question, and thereafter announce our considered judgment as to what is the proper rule for the state of New Mexico, giving to the student, or those interested in the subject, some of the most outstanding authorities, texts and law review articles, which are cited in footnotes, for-such examination as they may desire.

The “right of access” is apparently judge-made, the exact origin of which is difficult to determine.¹ Nevertheless, it is now considered a property right and may be loosely defined as the right of ingress to and egress from the property via the abutting street or highway. Generally speaking, all of the courts recognize such a right. There is also almost complete unanimity among the courts that traffic regulations, such as no-left-turns, one-way-street restrictions, and the like, are not an interference with the abutter’s right of access. In addition to this limitation,, practically all of the courts at least give “lip service” to the doctrine that the right of access is not compensably damaged by the diversion of traffic or by circuity of travel. It is, however, with reference to the application of these latter two limitations that the courts seem to come to a parting of the ways. Thus, some courts have held that although the landowner is not entitled to damages for diversion of traffic, nevertheless they have also held it proper for a witness to testify and a jury to consider that the value of the property has been decreased because the main stream of traffic no longer goes by the property involved. Other courts, on the contrary, take the view that the loss of the main stream of traffic and its effect on property values may not be considered. To us, there can be no middle ground. It is incongruous to say, on the one hand, that diversion of traffic is not a compensable item of damage, and, on the other, to allow the same to be considered as affecting values. Either the same should be considered for all purposes, or disregarded for all purposes.

Another disagreement appearing in the decisions relates to the police power of the state, some of the courts holding that the taking of access comes within the police power and is non-compensable, while others have determined that it is not within the limits of police power and must be compensated for in eminent domain. In view of our disposition of the problem, we do not feel that there need be any determination as to whether the instant case falls within or without the police power of the state.

Still another source of conflict among the courts is the fact that some have determined that the right of access, even though interfered with, is only compensable if a portion of the property owner’s land is taken. We find this reasoning somewhat difficult to follow, because if the right of access is a property right, its loss will be just as severe and should be compensable, whether a portion of the condemnee’s land is taken or not. No doubt, however, the courts which so hold are doing so upon the unstated ground that to allow compensation in all cases would be so burdensome that the state would be unable to continue its work. Be this as it may, the conclusion we reach will not require us to make such a hairline distinction.

The decisions of the courts seem to fall in three major categories:

(1) That any loss which results from being placed upon a frontage road is not to be compensated in eminent domain, whether land is taken or not.²

(2) That any loss resulting from being placed on a frontage road should be compensated, but the frontage road should be considered in mitigation.³

(3) That any loss resulting from being placed upon a frontage road should be compensated only when accompanied by a taking of land and that the existence of a frontage road should be considered in mitigation.⁴

As hereinbefore stated, the conflict among the decisions is basically concerned with whether the right of access is a limited one,- or one which, in effect, gives the abutter a superior right to that of the public. If the abutter has a private easement to the highway, other than reasonable access there-, to, it must have been reserved by prior deed, or have attached by virtue of statute or decision. We know of no such statute or decision granting such a preference to an abutter under the facts here present, and, from the record in this case, no such right was apparently reserved. The question, then, is, should this court, by judicial decision, grant to an abutter a greater interest in the fee of a highway than the abutter has to other land owned by the state? See, 3 Nichols on Eminent Domain, § 10.221(5). From a policy standpoint, we see no reason why the state’s ownership of the fee is not paramount to any claimed servitude occurring merely by virtue of fortunate location.

It is asserted that certain' prior decisions of this court are controlling.⁵ We cannot agree. Without extending this opinion unduly, we observe that the New Mexican Railroad Company case and the Bennett case are clearly distinguishable, because, in each, there was a total deprivation of access and failure to provide reasonable access to the general highway system. Weatherly dealt merely with a- procedural question and is in no sense controlling here, and Harris related to a change of grade as it affected access and is not in point under the facts in this case. With regard to Sullivan v. Wilson, that decision requires ■that we give full constitutional scope to the Access Condemnation Statute of 1957,'⁶ and this is exactly what we are attempting to do in this decision.

It is vigorously urged that the Access Condemnation Statute is a mandatory provision of our law. With such a construction we disagree, believing that the statute was merely enabling legislation, designed to permit the highway commission to meet standards required by federal law, and that it is pei-missive, not mandatory.

We fully recognize that loss of direct access and the requirement of unreasonable circuity of travel may in some instances be compensable, even when any consideration of the flow of public travel is eliminated. Nevertheless, in the instant case, we are of the opinion that, in law, there is no unreasonable interference with appellees’ access, nor do we feel that such a holding is violative of any provisions of the State or the United States Constitutions.

The fact that, as stated above, the courts of the several states are in almost hopeless confusion can in nowise affect our decision, and it is to be observed that two of our adjoining states (Texas on the east, and Arizona on the west) have arrived at seemingly diametrically opposed results.

We have held that the abutting landowner has no vested right in the flow of public travel.⁷ In essence, although differently phrased, the defendants’ contention is that the damage to the remaining property is caused by this loss of access to the public stream of travel. As mentioned heretofore, one of the principal differences in the decisions on this subject relates to whether compensation may be allowed for diversion of traffic, or whether diversion of traffic is a compensable item of damage in considering before-and-after values. Our decision in Slaughter squarely denies compensation for diversion of traffic, and it is partly upon this same theory that the cases cited in Footnote 2 were determined. Contrariwise, the cases cited in Footnote 3, particularly those from California, Arizona and Minnesota, permit compensation for diversion of traffic, in one way or another. In this case, to allow compensation would require an .overruling of Slaughter, and this we decline to do. There is.no justification under our decisions to distinguish between diverting traffic by moving a right-of-way or by building a fence. We declined to permit compensation for the diversion of traffic caused by moving a right-of-way in Slaughter, and reason and logic require a similar result here where the diversion is by reason of the fence.

We take the position that abutters (the defendants in this case) have a right of access to the public roads system; but it does not necessarily follow that they have a right of direct access to the main-traveled portions thereof. Circuity of travel, as long as it is not unreasonable, and any supposed loss in land value by reason of the diversion of express traffic, are non-com-' pensable.

In other words, the right of access, if it is to be termed a right, as such, is merely a right to reasonable, but not unlimited, access to and from the land.

Thus, for clarity, we would define the right of access as applicable to the state of New Mexico, as a right of ingress tó and egress from land on an abutting street or highway and therefrom to the system of public roads, subject to reasonable traffic regulations and not affected by diversion of traffic or reasonable circuity of travel.

Defendants and amici curiae urge that paragraph 17 of the stipulation, quoted by us, requires granting judgment in the amount sought. We do not so view the stipulation, inasmuch as, in context, it followed the propositions of law upon which the parties were relying and was expressly dependent upon the court’s determination of the legal issue. It was merely an agreement fixing a value if, but only if, the damage was found to be compensable. Any other construction would do violence to the real agreement of the parties and be contrary to the established rule as to the effect to be given to stipulations of the parties.⁸

We would also observe in this connection that, although the trial court concluded that the frontage road operated in partial mitigation, nevertheless no consideration was given in the judgment to the question of mitigation of damages. In any event, we have here determined that the defendants’ loss of access is non-compensable. Therefore, the agreement of counsel as to the difference in value is of no importance.

The judgment of the district court will be reversed, insofar as it awards the defendants compensation for loss of access.

It is so ordered.

COMPTON, C. J., and CHAVEZ and NOBLE, JJ., concur. MOISE, J., dissenting.

1 . 2 Nichols on Eminent Domain, 3d ed., §§ 6.4442 and 6.4443;

3 Nichols on Eminent Domain, 3d ed., §§ 10.22 and 10.221;

Jahr, Eminent Domain, ch. VIII §§ 47-65, at 6S-91 (1953) ;

Elliott, Roads and Streets, §§ 297-299 at 358-363 (4th ed. 1926).

Also, helpful discussions are to be found in several law review articles or notes:

13 Mo.L.Rev. 19 (1948);

3 Stanford L.Rev. 298 (1950-51);

27 Wash.L.Rev. and St. Bar Journ. 111 (1952);

43 Iowa L.Rev. 258 (1957-58);

38 Neb.L.Rev. 407 (1959);

1959 Wash.U.L.Q. 310;

11 Baylor L.Rev. 149 (1959) — (As a part of this article, the author has included a hypothetical problem, clearly illustrating a comparable situation to the instant case).

56 Northwestern L.Rev. 587 (1961)

2 . Arkansas State Highway Commission v. Bingham (1960), 231 Ark. 934, 333 S.W. 2d 728;

Pennysavers Oil Co. v. State (1960), Tex. Civ.App., 334 S.W.2d 546;

Winn v. United States (9th Cir. 1959), 272 F.2d 282 (but see Mabe v. State, Footnote 3);

Selig v. State, 1961, 10 N.Y.2d 34, 217 N.Y.S.2d 33, 176 N.E.2d 59;

Darnall v. State (S.D.1961), 108 N.W.2d 201;

State ex rel. Merritt v. Linzell, 1955, 163 Ohio St. 97, 126 N.E.2d 53;

Iowa State Highway Commission v. Smith, 1957, 248 Iowa 869, 82 N.W.2d 755, 73 A.L.R.2d 680.

See, also:

Nick v. State Highway Commission, 1960, 13 Wis.2d 511, 109 N.W.2d 71, 111 N.W.2d 95;

Robinett v. Price (1929), 74 Utah 512, 280 P. 736;

State, by and through State Highway Com’n v. Burk, 1954, 200 Or. 211, 265 P.2d 783;

Department of Highways v. Jackson (Ky. 1957), 302 S.W.2d 373;

Hillerege v. City of Scottsbluff, 1957, 164 Neb. 560, 83 N.W.2d 76;

Holbrook v. State (Tex.1962), 355 S.W. 2d 235;

Gayton v. Department of Highways (Colo. 1962), 367 P.2d 899.

3 . People v. Ricciardi, 1944, 23 Cal.2d 390, 144 P.2d 799;

Riddle v. State Highway Commission, 1959, 184 Kan. 603, 339 P.2d 301;

McMoran v. State, 1959, 55 Wash.2d 37, 345 P.2d 598;

Mabe v. State (1961), 83 Idaho 222, 360 P.2d 799 (but see Winn v. United States, Footnote 2);

Blount County v. McPherson, 1958, 268 Ala. 133, 105 So.2d 117;

Clayton County v. Billups Eastern Petroleum Co., 1961, 104 Ga.App. 778, 123 S.E.2d 187;

State v. Hollis, 1983, 93 Ariz. 200, 379 P.2d 750;

Hendrickson v. State, Minn.,— - N.W.2d

4 . State ex rel. Morrison v. Thelberg, 1960, 87 Ariz. 318, 350 P.2d 988 (but compare prior opinion at 86 Ariz. 263, 344 P.2d 1015);

State ex rel. State Highway Commission v. Lynch (Mo.1956), 297 S.W.2d 400; Mississippi State Highway Commission v. Finch, 1959, 237 Miss. 314, 114 So.2d 673.

5 . New Mexican Railroad Co. v. Hendricks, 1892, 6 N.M. 611, 30 P. 901;

Bennett v. Nations, 1945, 49 N.M. 389, 164 P.2d 1019;

State Highway Commission of N. M., State ex rel. v. Weatherly, 1960, 67 N.M. 97, 352 P.2d 1010;

Board of County Com’rs, Lincoln Co. v. Harris, 1961, 69 N.M. 315, 366 P.2d 710; New Mexico district court three-judge decision, Sullivan v. Wilson, No. 4116 (June 20, 1959) (Not reported).

6 .Sec. 55-10-1 et seq., N.M.S.A.1953.

7 . Board of County Com’rs of Santa Fe County v. Slaughter, 1945, 49 N.M. 141, 158 P.2d 859;

Tomlin v. Town of Las Cruces, 1934, 38 N.M. 247, 31 P.2d 258, 97 A.L.R. 185; Mandell v. Board of Com’rs of Bernalillo County, 1940, 44 N.M. 109, 99 P.2d 108.

8 . Alldredge v. Alldredge, 1915, 20 N.M. 472, 151 P. 311;

In re Quantius’ Will, 1954, 58 N.M. 807, 277 P.2d 306;

Griego v. Hogan, 1963, 71 N.M. 280, 377 P.2d 953.