143 N.W.2d 722 (S.D. 1966), 10110, Hurley v. State

Docket Nº:10110.
Citation:143 N.W.2d 722, 82 S.D. 156
Opinion Judge:The opinion of the court was delivered by: Hanson
Party Name:Marcellus S. HURLEY and Vora Jane Hurley, Plaintiffs, v. STATE of South Dakota, Defendant.
Attorney:Bangs, McCullen, Butler & Foye, and Sieler, Sieler & Varilek, Rapid City, for plaintiffs.
Case Date:June 21, 1966
Court:Supreme Court of South Dakota
 
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Page 722

143 N.W.2d 722 (S.D. 1966)

82 S.D. 156

Marcellus S. HURLEY and Vora Jane Hurley, Plaintiffs,

v.

STATE of South Dakota, Defendant.

No. 10110.

Supreme Court of South Dakota.

June 21, 1966

[82 S.D. 158]

Page 723

Bangs, McCullen, Butler & Foye and Sieler, Sieler & Varilek, Rapid City, for plaintiffs.

Frank L. Farrar, Atty. Gen., and John B. Wehde, Sp. Asst. Atty. Gen., Pierre, for defendant.

HANSON, Judge.

This is the final chapter, we trust, in protracted proceedings involving damages claimed by an abutting property owner for loss of access to West Boulevard in Rapid City. The action originated[82 S.D. 159] against the city. On appeal, Hurley v. City of Rapid City, 80 S.D. 180, 121 N.W.2d 21, it was determined the city was not legally responsible for the damages claimed. Plaintiffs then filed a claim in the amount of $75,000 against the State of South Dakota. The claim was denied and this action commenced under SDC 1960 Supp. 33.0604. The Hon. F. Thomas Parker, one of the judges of the Seventh Judicial Circuit, was appointed Referee. During the reference certain pretrial questions were certified to and determined by this court in Hurley v. State, S.D., 134 N.W.2d 782. The issues were thereafter heard by the Referee, without a jury, and he reports there has been a substantial impairment of plaintiffs' right of access by the construction of a barrier by the State constituting a taking and damaging of plaintiffs' property in the amount of $20,000, together with interest at 6 percent per annum since April 19, 1959. The State excepts to the Referee's Report upon the following grounds: (1) There has been no compensable taking or damaging of plaintiffs' property, and (2) there was not a unity of use between the two lots sufficient to support a consequential damage award as one parcel.

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The facts found by the Referee and as disclosed by the evidence show plaintiffs have owned Lots 1 and 2 of Tract A in Lot 25, Block 25 of Riverside Addition in Rapid City since 1954. Lot 1 is situated on the corner of Omaha Street and West Boulevard. Lot 2 adjoins on the west. Before the taking West Boulevard and Omaha were conventional public streets. Plaintiffs had open, free, and unobstructed access to West Boulevard on the east of their lots for a distance of 162 feet and to Omaha Street on the south for a distance of 80 feet. West Boulevard was converted from a conventional street into part of Interstate 90. As part of the construction the State Highway Commission on April 19, 1959 erected a steel barrier along the west side of West Boulevard. This steel barrier runs along the entire east side of plaintiffs' lots and extends around the corner on Omaha Street for a distance of 10 feet. The barrier precludes all direct access from plaintiffs' property to West Boulevard.

The Referee found before the construction of the barrier and conversion of West Boulevard into part of Interstate 90 the [82 S.D. 160] highest, best, and most profitable use of the two lots was for a service station with a fair market value of $30,000. After the construction of the barrier the property was no longer usable as a service station and had a fair market value of $10,000. Therefore, plaintiffs' property was substantially impaired and damaged by the loss of access in the amount of $20,000. The Referee also found the highest, best, and most profitable use of Lots 1 and 2 were as a unit. The lots were vacant and unoccupied.

It is universally recognized that an owner of land abutting on a conventional street or highway has certain private rights in the street or highway distinct from that of the general public. 29A C.J.S. Eminent Domain § 105(1), p. 424 et seq. Right of access is one of these private property rights which cannot be taken for public use or materially impaired without compensation. 29A C.J.S. Eminent Domain § 105(2), p. 429. This has long been the settled law of this state. In the early case of Edmison v. Lowry, 1892, 3 S.D. 77, 52 N.W. 583, 17 L.R.A. 275, the court said: 'This right of the abutting owner is a peculiar, distinct, and separate right from that of the general public to use such street as a public highway. It includes, not only the rights of the general public, but the further right to the street for light and air, access, ingress, and egress, at all times, subject only to the easement of the public and the rights of the municipality. This right to an unobstructed street in front of his premises for light and air, access, ingress, and egress, belonging to an abutting owner, constitutes the most valuable part of the property, especially in crowded thoroughfares and on business streets, and without these rights the property, in many instances, would be greatly diminished in value. These rights, therefore, constitute property that cannot be taken for public use, except upon payment of just compensation.' See also Hyde v. Minnesota, D. & P. Ry. Co., 29 S.D. 220, 136 N.W. 92, of Alabama, Arizona, Arkansas, California,

Until the latter part of the last century most states refused to compensate an owner of land which had been damaged by the construction of a public improvement where there was no physical taking of any part of the property on the theory that [82 S.D. 161] consequential damages were not recoverable under the 'taking' clauses of their eminent domain constitutional clauses. This was recognized as unjust and 'in 1870 a constitutional amendment was adopted in Illinois providing that private property should be neither taken NOR DAMAGED for public use without compensation. This action by Illinois was followed by many of the other states * * * It is now contained in the constitutions of Alabma, Arizona, Arkansas, California, Colorado, Georgia, Illinois, Kentucky, Louisiana, Minnesota, Mississippi, Missouri,

Page 725

Montana, Nebraska, New Mexico, North Dakota, Oklahoma, Pennsylvania, South Dakota, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming * * * It is under the later provision of the constitution protecting an owner against 'damage' that a landowner may claim compensation for the destruction or disturbance of easements of light and air, and of accessibility, or of such other intangible rights as he enjoys in connection with and as incidental to the ownership of the land itself'. 2 Nichols on Eminent Domain § 6.44, pp. 486, 487.

This basic rule has long been recognized in South Dakota i.e., even though no part of private property is physically taken the landowner is entitled to compensation under the taking and damaging clause of our constitution (§ 13, Art. VI) when the construction of a public improvement causes damage to property 'if the consequential injury is peculiar to the owner's land and not of a kind suffered by the public as a whole.' State Highway Commission v. Bloom, 77 S.D. 452, 93 N.W.2d 572; Searle v. City of Lead, 10 S.D. 312, 73 N.W. 101, 39 L.R.A. 345; Whittaker v. City of Deadwood, 12 S.D. 608, 82 N.W. 202; In Re Yankton-Clay County Drainage Ditch, 38 S.D. 168, 160 N.W. 732.

Specific statutory authority is granted to the state highway department to acquire 'private or public property rights for controlled-access facilities and service roads, including rights of access, air, view, and light * * *.' SDC 1960 Supp. 28.09A05.

It is equally well settled, however, that an abutting landowner's right of access is not absolute, but is subject to [82 S.D. 162] reasonable regulation and restriction by the state under its police power in the public interest. As expressed in Darnall v. State, 79 S.D. 59, 108 N.W.2d 201 '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 * * * 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 * * * it has been declared to be a reasonable or convenient access and not access at all points along the highway.' Under the circumstances, it was concluded by the majority of the court there could be no recovery as there was no physical taking and the owner's access to the highway was not unreasonably diminished or interfered with. Therefore, Darnall's loss due to diversion of traffic was the end result of a lawful exercise of the police power. The State contends the same principle applies and the same conclusion is dictated here. We do not agree.

The three broad inherent powers of governmental sovereignty by which the state carries out its fundamental purpose of protecting the health, safety, morals, and general welfare of the public are the powers of taxation, police, and eminent domain. These are co-existing and may be and often are exercised simultaneously to perform a single governmental function. In such case, it is difficult to determine with exactitude when regulation under the police power ends and a compensable taking of private property begins. The question was answered by the Nebraska Court in Balog v. State, 177 Neb. 826, 131 N.W.2d 402 as follows: 'The fact that appellant (State of Nebraska) had under the police power the right to improve its streets and thereby control the traffic thereon does not mean that it had immunity from liability to respond in damages which resulted to private property abutting the improvement where a part of the property of appellee was taken by condemnation. The exercise of police power may or may not involve the taking of private property and it may or may not involve mere non-compensable inconvenience to the owner thereof. The distinction is not whether it is a valid exercise of police power but whether or not the property itself is taken or damaged.' Likewise, the Minnesota

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Court said 'While [82 S.D. 163] courts have assumed that designating a regulation an...

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