Atkinson v. State Highway Commission of Kan., 41296

• Decision Date: 16 May 1959
• Docket Number: No. 41296,41296
• Citation: 184 Kan. 658,339 P.2d 334
• Parties: Paul ATKINSON and Jean Atkinson, His Wife; City Oil and Gas Company, Inc., Corporation; and Roger A. Martin, Appellees, v. STATE HIGHWAY COMMISSION of the State OF KANSAS, Appellant.
• Court: Kansas Supreme Court

Page 334

339 P.2d 334

184 Kan. 658

Paul ATKINSON and Jean Atkinson, His Wife; City Oil and Gas Company, Inc., Corporation; and Roger A. Martin, Appellees, v. STATE HIGHWAY COMMISSION of the State OF KANSAS, Appellant.

No. 41296.

Supreme Court of Kansas.

May 16, 1959.

Rehearing Denied June 17, 1959.

Syllabus by the Court

1. The record is examined in a suit in equity wherein the trial court entered a decree permanently enjoining the state highway commission from establishing a controlled access facility (G.S.1957 Supp. 68-1901 et seq.) limiting pre-existing and unlimited rights of access to and from a filling station property, located at the southwest corner of the intersection of Seventy-fifth Street and Highway 69 in Johnson county, until such time as the commission by and through its power of eminent domain properly proceeds to condemn the rights of access, and it is held, the trial court did not err in entering its decree of permanent injunction.

2. Well-established rules controlling the scope of review of an appellate court where no motion for new trial is filed in the court below are herein set out and reaffirmed.

Stanley Taylor, El Dorado, and Jerry Ann Foster, Topeka, argued the cause, and W. B. Kirkpatrick, Asst. Atty. Gen., was with them on the briefs, for appellant.

Philip E. Buzick, Topeka, and Robert P. Anderson, Overland Park, argued the cause, and Robert L. Webb, Ralph W. Oman, Robert A. McClure, and James D. Waugh, Topeka, and Lyndus A. Henry, Overland Park, were with them on the briefs, for appellees.

ROBB, Justice.

This is an action for injunctive relief. The appeal is by the state highway commission, defendant below, from an order made by the trial court permanently enjoining contemplated improvements by the commission on its previously condemned right of way adjacent to plaintiffs' land for the reason that plaintiffs' right of access was thereby limited without just compensation.

The petition in pertinent part alleged that plaintiffs' property consists of a filling station, gasoline pump islands, and driveways or parking areas around the station and is located upon the southwest corner of the intersection of Seventy-fifth Street and U. S. Highway 69 in Johnson county. The street runs east and west and the highway north and south. The property has been used for filling station purposes for over six years. The station building is located along the west side of the property facing Highway 69. One gasoline pump island is parallel to and fifteen feet south of the southern right of way line of Seventy-fifth Street and the two remaining gasoline pump islands are parallel to each other and to Highway 69 and are located between the highway and the station building, the easternmost island being ten feet west of the western right of way line of Highway 69. At all times plaintiffs have had full and unrestricted access to and from the traveled portions of Seventy-fifth Street and Highway 69 and along the north and east boundaries of their property including the northeast corner thereof. Such free and unrestricted access has been possessed, used and enjoyed by plaintiffs with the commission's knowledge and acquiescence. Plaintiffs can use all of their facilities in serving customers with present free and unlimited ingress and egress from all directions. Such free and unrestricted access is necessary and essential to the full use and enjoyment of the property and the use and purpose to which it has been devoted. Plaintiffs cannot relocate the building or islands because of other businesses and buildings. The commission, unless enjoined, will construct raised concrete curbing from the corner twenty feet to the west along the south edge of Seventy-fifth Street and a combination raised and rolled back concrete curbing from the corner to the south along the west line of Highway 69 and the entire east line of plaintiffs' property. This construction will deprive plaintiffs of free and unlimited access and they will be unable to utilize their property fully as has heretofore been done. The two north gasoline pumps will be wholly useless and the two easternmost pumps will have to be removed or automobiles of customers being serviced there will block ingress and egress of other customers and will limit use of the two pumps in the westernmost island, all of which will greatly depreciate, if not wholly destroy, plaintiffs' volume of business and profits. The commission, if not enjoined, will so proceed without compensation to plaintiffs for the taking of the full and unrestricted right of access heretofore owned, enjoyed and utilized by plaintiffs which right is necessary and essential to the full utilization and enjoyment of the property. This constitutes a taking of plaintiffs' property and rights without due process of law. Plaintiffs will suffer special and peculiar damages uncommon to the general public for which there is no adequate remedy at law and they are entitled to the equitable relief of injunction until such time as such property and rights of plaintiffs are acquired by the commission in accordance with law. The petition also alleged that the commission was proceeding with the above activities and should be temporarily restrained pending hearing on the injunction or irreparable damage would result to plaintiffs.

On July 30, 1957, the trial court temporarily restrained the commission from proceeding further until a hearing in regard to the granting of a temporary injunction could be held. On August 16, 1957, a temporary injunction was ordered by the trial court and plaintiffs posted a $1,000 bond under G.S.1949, 60-1110.

The commission filed its answer making certain admissions not necessary to reiterate here and further stated:

The curbing and entrances adjacent to plaintiffs' land were originally designed under a plan held open for and subject to alteration and adjustment. Plaintiffs had not made any attempt to get the commission to change the design of the curbing and entrances to their property. Adjacent to the southeast corner of plaintiffs' property, proceeding north, the commission proposed to curb for a distance of two feet, provide an entrance of thirty feet, curb another twenty-two feet, provide another entrance of thirty feet to approximately four feet south of the north line of plaintiffs' property curbing around the northeast corner thereof from south to west on a fifteen foot radius all in the public right of way. U. S. Highway 69 is an urban type roadway in this area with many homes, business properties and shopping centers adjacent thereto. The project was 2.851 miles long and consisted of widening the highway from two lanes to four lanes with curbs and entrances. At the particular intersection involved the annual average twenty-four hour traffic count in 1956 was 17,620 vehicles. Because of the great volume of traffic and in the interest of public safety and convenience, the curbing and entrances were necessary and plaintiffs would not be denied ingress and egress. The commission possessed legislative authority and discretion to regulate ingress and egress. Plaintiffs were not entitled to maintain this action to prevent the accomplishment of measures designed for the safety and benefit of the public. Plaintiffs had an adequate remedy at law by an action in implied contract.

Plaintiffs filed a reply in the form of a general denial of new matter alleged in the answer and restated many of the allegations of the petition whereby the issues were made up.

In view of later discussion herein, it is unnecessary to consider fully the evidence and testimony of the parties except to say generally that they substantially support the allegations of the pleadings.

At the close of the introduction of evidence the trial court permanently enjoined the commission from building, constructing or maintaining any curb, or any other public improvement, along or adjacent to the north or east boundaries of plaintiffs' property and from doing any other act permanently limiting, lessening or interfering with the free, unlimited and direct access of plaintiffs and their customers to and from the station to and from Seventy-fifth Street and Highway 69, unless and until the affected property rights of the plaintiffs have been acquired by the commission by purchase or by condemnation proceedings, provided that nothing in the judgment should prevent the commission from doing all acts necessary to accomplish the widening and improvement of the surface of Highway 69 on the commission's presently owned right of way, or from temporarily obstructing and interfering with right of access of plaintiffs or their customers necessary for the accomplishment of such widening and surfacing. Plaintiffs were required to file a $1,000 bond in accordance with G.S.1949, 60-1110.

The commission appealed from the judgment specifying as error that the trial court erred in denying that plaintiffs have a clear and adequate remedy at law; in granting judgment against the commission's exercise of its regulatory power in making necessary and urgent public improvements; in permitting plaintiffs to claim compensation for any loss resulting from any limitation of access as the basis for the injunction; in rendering judgment contrary to the evidence and the law and in permanently enjoining the commission from constructing any curb or other public improvement along plaintiffs' property which would permanently limit, lessen, or interfere with the free, unlimited and direct access of plaintiffs and their customers. Further errors urged were that the trial court erroneously granted a permanent injunction against the commission unless and until plaintiffs' affected property was purchased or condemned; that the injunction was granted where no property or property rights were taken and was in error because it related to the exercise of police power by the commission.

There is no question but that the commission's planned...