404 P.2d 934 (Kan. 1965), 44029, Brock v. State Highway Commission

Docket Nº:44029.
Citation:404 P.2d 934, 195 Kan. 361
Party Name:Robert L. BROCK and Edwin R. Linquist, Appellants, v. STATE HIGHWAY COMMISSION of Kansas, Appellee. Ruth O. RAGSDALE, Appellant, v. STATE HIGHWAY COMMISSION of Kansas, Appellee.
Attorney:[6] Gerald L. Goodell, of Topeka, argued the cause, and Lester M. Goodell, Marlin S. Casey, Raymond Briman, Murray F. Hardesty, Wayne T. Stratton, Robert E. Edmonds and Arthur E. Palmer, attorneys for appellants, Brock and Linquist, and Harold E. Doherty, Ernest J. Rice and James E. Benfer, attor...
Case Date:August 19, 1965
Court:Supreme Court of Kansas
 
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Page 934

404 P.2d 934 (Kan. 1965)

195 Kan. 361

Robert L. BROCK and Edwin R. Linquist, Appellants,

v.

STATE HIGHWAY COMMISSION of Kansas, Appellee.

Ruth O. RAGSDALE, Appellant,

v.

STATE HIGHWAY COMMISSION of Kansas, Appellee.

No. 44029.

Supreme Court of Kansas

August 19, 1965

Page 935

[Copyrighted Material Omitted]

Page 936

Syllabus by the Court

1. Where it is claimed that the State Highway Commission had taken the right of access to a controlled access highway without obtaining the right of access by condemnation or otherwise; the owner of land abutting the highway has a remedy by way of an action for damages in the nature of a suit on an implied contract.

2. Inasmuch as a landowner has an adequate remedy at law for the taking of his access to an abutting controlled access

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highway without compensation, he cannot proceed by way of injunction or mandamus to protect himself from the alleged wrongful taking. (The procedure by way of injunction permitted in Franks v. State Highway Commission, 185 Kan. 131, 319 P.2d 535 and Atkinson v. State Highway Commission, 184 Kan. 658, 339 P.2d 334, is disapproved.)

3. An action to recover damages for the taking of private property for public use without compensation is in the nature of an inverse condemnation proceeding and the same rules of law apply to the determination of the right to damages and the measure of damages as in a condemnation proceeding.

4. The question of whether or not the State Highway Commission has exceeded the police power in restricting access rights to a highway is a matter for the determination of the trial court as a matter of law under the existing facts and circumstances, and this determination should be made before the case is submitted to the jury as to the amount of damages.

5. The common law rules relating to rights of access were adopted for application to conventional highways such as landservice, farm-to-market and ordinary highways, to meet local transportation needs, as distinguished from interstate highways, freeways and other thoroughfares which were not then known and which require controlled access facilities for public safety and convenience.

6. The common law rules relating to highway access rights were adaptable to circumstances and left capacity for growth. The doctrine granting access rights to owners of abutting land as developed for conventional highways does not have the same application to controlled access thoroughfares.

[195 Kan. 362] 7. Although an abutting landowner has a right to use a highway, he cannot be heard to say that he has been deprived of his right of access or compensably damaged because he does not have direct access to the through-traffic lanes of an access controlled highway where public judgment dictates that access to and from the highway should be controlled and is subject to control under the police power of the state.

8. Circuity of travel, necessarily and newly created, to and from real property, does not of itself result in legal impairment of the right of ingress and egress to and from such property and a controlled access highway.

9. An owner of land has no right to the continuation of a flow of traffic in front of his property from an access controlled thoroughfare and the state may abandon, reroute or otherwise divert traffic without any liability to the owner of abutting lands.

10. Where a frontage road, which is part of the highway system, provides owners of land with access to the through-traffic lanes by points of connection, only 575 feet apart, between the frontage road and the through-traffic lanes, access is not denied and the denial of direct access is within the police power of the state acting through the State Highway Commission.

11. Franks v. State Highway Commission, 182 Kan. 131, 319 P.2d 535 and Atkinson v. State Highway Commission, 184 Kan. 658, 339 P.2d 334, do not recognize the new concept of controlled access highways; are contrary to the law as expressed in this opinion, and are therefore overruled.

Gerald L. Goodell, Topeka, argued the cause, and Lester M. Goodell, Marline S. Casey, Raymond Briman, Murray F. Hardesty, Wayne T. Stratton, Robert E. Edmonds and Arthur E. Palmer, Topeka, attorneys for appellants Brock and Linquist, and Harold E. Doherty, Ernest J. Rice and James E. Benefer, Topeka, attorneys for appellant Ragsdale, were with him on the briefs, for appellants.

Jacob A. Dickinson, Topeka, argued the cause, and Charles N. Henson, Chief Atty. for State Highway Commission, and Mark

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L. Bennett, Jr., Topeka, were with him on the briefs, for appellee.

HATCHER, Commissioner:

This is an appeal from a verdict and judgment denying damages for the alleged deprivation of plaintiffs' common law right to direct access to a pre-existing highway.

Plaintiffs own, as tenants in common, a tract of land bounded on the north by U. S. Highway 24 beginning at a point 150 feet [195 Kan. 363] east of Rochester Road (North Tyler Street), Topeka, Kansas, thence east 575 feet. The other boundary lines are not material to the controversy.

In September, 1951, defendant condemned certain parcles of real estate lying directly north of the above described land for the purpose of widening U. S. Highway 24. No appeal was taken from the appraisers' award. Neither were rights of access mentioned in the condemnation proceedings.

The 1953 session of the Kansas legislature enacted K.S.A. 68-1901 et seq., which specifically provided for the designation of controlled access facilities, and for the acqusition, by condemnation, of rights of access facilities, including rights of access, light, air or view.

On November 9, 1955, part of U. S. Highway 24, including the strip north of plaintiffs' land, was by resolution of the State Highway Commission of Kansas declared to be a controlled access facility and the Right-of-Way Department was authorized to acquire the right-of-way and access rights necessary to effect such a project. In the late fall of 1956, the defendant constructed a frontage road on the land acquired from plaintiffs by condemnation in 1951, lying between the plaintiffs' land and the through lanes of U. S. Highway 24.

At and prior to the adoption of the resolution providing for the controlled access facilities and the construction of the frontage road there were located on plaintiffs' frontage land four business establishments holding leases from plaintiffs consisting of a Dairy Freeze Drive-In, a Sinclair Refining Company oil and gas station, a cafe and a Texas Company oil and gas station. Prior to the construction of the frontage road each of the business mentioned had direct access to and from U. S. Highway 24.

As a result of the construction of the frontage road it became necessary, in order to gain entrance to said business establishments from the highway and in order to enter the highway from the business establishments, to go to such points as access facilities have been constructed by defendant for such purpose, i. e., at each end of the 575 foot frontage.

The plaintiffs brought an action against the defendant for damages. The petition as amended alleged the facts as above stated and further alleged:

'Although said frontage road between plaintiffs' property and the through lanes of Highway 24 has long been completed, no condemnation proceedings [195 Kan. 364] have been instituted by the defendant, nor has any compensation in any form been paid to plaintiffs for the loss of direct access to the said business establishments located on their said property as herein alleged.'

The prayer was for damages in the sum of $88,750.00.

The defendant answered alleging that plaintiffs had been furnished reasonable, direct and convenient access to and from the four main traveled lanes of U. S. Highway 24 and that the frontage road had been constructed at public expense for the special use and benefit of plaintiffs' property and that there is no physical barrier separating plaintiffs' property from the frontage road. The answer further alleged:

'Defendant State Highway Commission has constructed cross-over openings at the east and west ends of plaintiffs' property for the special use and benefit of plaintiffs and their tenants, permitting thereby convenient and direct access to or from the four

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main traveled lanes of U. S. 24 to plaintiffs' property.

'Defendant State Highway Commission denies that it has taken any property or compensable property rights of plaintiffs, their tenants or lienholders and further denies that it is responsible for, or liable for, depreciation of market value of plaintiffs' property, if any, at the time of the alleged taking of property or property rights in 1956.'

The issues were tried to a jury which found generally for the defendant. Judgment was entered on the verdict and plaintiffs have appealed.

Although the appellants raise numerous trial errors, the merits of this case will be determined on appellants' contention that----

'It was error for the court not to rule as a matter of law that the Defendant (Appellee) acquired the access rights of the Plaintiffs (Appellants) and to direct a verdict in this regard for Plaintiffs (Appellants).'

In support of the above contention the appellants argue that 'the construction of a frontage road between a landowner's property and a pre-existing public highway is the taking of the common law right of direct access as a matter of law.' Some of our decisions cited by appellants, and which will be considered later, would appear to support their argument. However, it would also appear that controlled access highways, and the necessity therefor, under our modern addiction to increased speed on the highways, has created an entirely new concept...

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