Aust v. Marcello

• Decision Date: 02 November 1973
• Docket Number: No. 1892-A,1892-A
• Citation: 112 R.I. 381,310 A.2d 758
• Parties: Richard R. AUST et ux. v. Angelo MARCELLO, Director of Public Works. ppeal.
• Court: Rhode Island Supreme Court

Page 758

310 A.2d 758

112 R.I. 381

Richard R. AUST et ux. v. Angelo MARCELLO, Director of Public Works.

No. 1892-Appeal.

Supreme Court of Rhode Island.

Nov. 2, 1973.

John M. Booth, Providence, for petitioners.

Richard J. Israel, Atty. Gen., George H. Egan, Sp. Asst. Atty. Gen., for respondent.

OPINION

DORIS, Justice.

The petitioners, the owners of a parcel of real estate fronting on the westerly side of Killingly Street, a public highway, parthy in he city of Providence and party in the town of Johnston, bring this bill in equity against the respondent, the State Director of Public Works. They pray that either the respondent be restrained from interefering with their access to the public highway contiguous to their property and from constructing any fence or barrier that interferes with such right of access or, in the alternative, just compensation be awarded to the petitioners for the loss of access o said property.

After hearing, before a justice of the Superior Court, a decision was rendered for respondent for costs, wherein the trial justice found that if damages were to be awarded the award to petitioners should be in the amount of $3,000. Judgment was thereupon entered for respondent with costs. The cause appears before us on petitioners' appeal from that judgment.

Acting pursuant to the authority contained in G.L.1956 (1969 Reenactment) ch. 6 of title 37, and G.L.1956 (1968 Reenactment) ch. 10 of title 24, respondent on or about October 26, 1961, filed in the office of the recorder of deeds of the city of Providence a description of the land and a plat thereof with a statement that the property therein described was being taken for highway and freeway purpose, and on or about October 13, 1961, said respondent filed in the office of the town clerk of the town of Johnston a description of the land and a plat thereof with a statement that the property therein described was being taken for highway and freeway purposes.

On the dates stated petitioners were the owners of land contiguous to Killingly Street so-called, a public highway, to which petitioners had unlimited access. The respondent filed the plats in conjunction with the plan of the state of Rhode Island to construct a freeway highway, so-called, whereby included in the taking was Killingly Street up to the property line of petitioners. As proposed by the plat, petitioners, according to their testimony, were deprived of access to the highway for a distance of approximately 94 feet. The respondent, while denying any taking, admitted that if a taking were found the distance involved was approximately 80 feet rather than the 94 feet as contended by petitioners.

The petitioners presented testimony through a real estate expert, Angelo Iannitelli, that their property abutting the highway had a market value of $28,000 before the taking and a market value of $10,000 less after the taking. The respondent presented a real estate expert, Richard W. Jalbert, who testified that petitioners' property had a market value of $28,000 to $30,000 before the taking and that the taking resulted in a ten per cent loss in the market value of the property.

The trial justice in his decision found that respondent had established a line for freeway ¹ purposes for a distance of 80 feet contiguous to petitioners' property and thereby had precluded petitioners from free access to that part of the highway. He further found that respondent had established a line for state highway ² purposes for a distance of 65 feet contiguous to petitioners' property, but that said action did not interfere with petitioners' free access to that part of the highway.

The trial justice held that by taking the highway to the property line for freeway purposes, the state precludes petitioners from entering the freeway or any part thereof. He further held that petitioners have full access to that part of the highway designated as a state highway. Honig v. Director of Public Works, 106 R.I. 199, 258 A.2d 73 (1969); Murphy v. Director of Public Works, 103 R.I. 451, 238 A.2d 621 (1968). The trial justice also concluded that petitioners were thereby left with free access to the state highway along a 65-foot portion of their frontage and were able to use the same driveway to enter and leave their property that they had used before the line was established. The trial justice held that petitioners had reasonable access to their property and therefore there had been no taking which was compensable under art. I, sec. 16, of the constitution of this state. ³

In his decision, the trial justice cited and relied on a line of New Jersey cases which follow the rule that where a taking results in a feasonable access to the highway rather than a direct access which existed before the taking, no compensable injury results. Tubular Service Corp. v. Comm'r of State Highway Dept., 77 N.J.Super. 556, 187 A.2d 201 (1963); aff'd, 40 N.J. 331, 191 A.2d 745 (1963); Mueller v. New Jersey Highway Authority, 59 N.J.Super. 583, 158 A.2d 343 (1960).

The rule applied by the trial justice was recognized in this state as early as 1929 in Allen & Reed, Inc. v. Presbrey, 50 R.I. 53, 144 A. 888 (1929). In that case the complainant was the owner of a triangular tract of land in downtown Providence and conducted thereon a business which requird considerable loading and unloading of merchandise. The police, pursuant to a traffic ordinance, had established no-parking areas and one-hour-parking areas along the curb on two sides of the triangle but left unrestricted the third side. This court held that even though such regulation had impaired the easement of access, the complainant, having been left with reasonable access to its property, was not entitled to compensation. See also Newman v. Mayor of Newport, 73 R.I. 385, 57 A.2d 173 (1948).

The general rule in this state, then, is that where, in an exercise of police power, the right of access to land abutting upon a highway is impaired or diminished, such act is not a confiscatory taking requiring compensation unless the impairment or diminution is so substantial as to leave the property owner without reasonable access to his property. Allen & Reed, Inc. v. Presbrey, supra.

We have concluded however, that as a result of the enactment of § 24-10-3 ⁴ this rule is not applicable to cases in which easements of access to land abutting upon such a highway are extinguished by reason of the inclusion of the existing highway within a freeway line. The statute which was enacted in 1937 provides that where such an existing highway is included within a freeway, the existing easements of access therein may be extinguished by purchase or by taking under eminent domain. We are of the opinion that the statute constitutes a legislative declaration of public policy concerning compensability to land owners where easements have been extinguished by such an exercise of the police power and should therefore be afforded great significance. We hold public policy to be that such easements of access when extinguished shall constitute an exercise of the power of eminent domain for the purpose of establishing the damages resulting from such extinguishment.

It is our opinion that the Legislature did not intend to limit the application of this statute to cases in which there was total extinguishment of the easement. It is clear that where extinguishment was total the takings were compensable as being confiscatory in an unreasonable exercise of the police power. The legislative intent, in our opinion, was to enact a statute designed to provide those property owners whose prior existing easements were impaired only in part with the opportunity to establish the extent to which they were damaged, if any, by such taking. We have often held that the Legislature is presumed to know the state of existing relevant law when enacting a statute. Loretta Realty Corp. v. Massachusetts Bonding & Ins. Co., 83 R.I. 221, 114 A.2d 846 (1955). We presume that when it enacted § 24-10-3 the Legislature was aware of the decision in Allen & Reed, Inc. v. Presbrey, supra, which had been decided in 1929, eight years prior to the enactment of § 24-10-3. We impute to the Legislature knowledge that under the rule laid down in Allen an exercise of the police power which left the abutting owner of the easement with no reasonable access to his property was an unreasonable exercise of the police power, confiscatory, and requiring compensation. It is our conclusion, therefore, that the Legislature intended by enactment of the statute to give to those property owners whose loss of access was not so extensive as to deprive them of all reasonable access an opportunity to establish that they had been damaged by its impairment, and to make available to them an opportunity to have their damages assessmed by a jury pursuant to the procedures provided for in eminent domain cases.

In view of our conclusion that the provisions of § 24-10-3 are applicable to the instant case, we are constrained to conclude that the trial justice erred in ordering judgment for the respondent with costs. However, since the trial justice indicated that if his decision were to be reversed he was making an alternate finding that the petitioners had established that they had been damaged by the diminution of their access in the amount of $3,000, it will not be necessary to remand the case for a new trial. An examination of the record indicates that the experts testifying before the trial justice had provided sufficient evidence to support the trial justice's findings and in these circumstances his findings will not be disturbed.

The petitioners' appeal is sustained, the judgment appealed from is reversed, and the case is remitted to the Superior Court for entry of judgment for the petitioners in the amount of $3,000.

JOSLIN, J., did not participate.

KELLEHER, Justice (dissenting).

This case presents us with the question which was not before this court in ...