Department of Public Works and Bldgs. v. Mabee
| Decision Date | 19 May 1961 |
| Docket Number | No. 36179,36179 |
| Citation | 174 N.E.2d 801,22 Ill.2d 202 |
| Parties | DEPARTMENT OF PUBLIC WORKS AND BUILDINGS, Appellant, v. Emeline MABEE et al., Appellees. |
| Court | Illinois Supreme Court |
William G. Clark, Atty. Gen. , for appellant.
Heiple & Heiple, Washington, for appellee.
The question presented by this appeal is whether an abutting property owner may recover damages to property not taken allegedly caused by a traffic regulation restricting access to his property to one direction.
The circuit court of Woodford County rendered judgment on the everdict of a jury awarding to defendants, Emeline Mabee and Eugene R. Mabee, the sums of $905 for property taken and $3,295 for damage to property not taken. The Department of Public Works and Buildings seeks direct review of the case in this court pursuant to section 12 of the Eminent Domain Act. Ill.Rev.Stat.1957, chap. 47, par. 12.
Mabee operates a gasoline service station on a tract of land which lies within a right angle formed by State Bond Issue Route 9 which abuts on the north and the west sides of the tract. A driveway on the tract forms an arc connecting the legs of the right angle formed by the highway at this point. An insurmountable median has been constructed on that portion of the highway abutting on the north side of the tract which limits the access on the north to the eastbound traffic lane of the highway.
The trial court over objections permitted the introduction of evidence showing that the construction of the insurmountable medial divider reduces the value of the tract for filling station purposes. The court also instructed the jury that it could consider the effect the medial divider had on the value of property not taken. It refused the Department's instruction that the medial divider was constructed by virtue of the State's police power and cannot be made the basis of a claim for damages.
The defendants do not contend that the placing of the insurmountable medial divider on the north side of their property was an abuse of the State's police power. They argue rather that their property has been damaged within the meaning of section 13 of article II of our constitution, S.H.A
We recognize that the success of a business such as a gasoline service station is largely dependent on its convenient availability to motorists on the highway, that a large number of motorists will pass a station rather than follow a circuitous route to reach it and that therefore a one-way traffic regulation immediately in front of a service station may reduce the volume of business and to some extent the value of the property. It must be remembered, however, that our highways are built and maintained to meet public necessity, safety and convenience and not for the enhancement or maintenance of occasional property owners' businesses along the route.
A number of States have considered this problem and concluded that an abutting property owner is not entitled to compensation for the diminished property value or loss of business caused by the diversion of traffic by a one-way traffic control device or the complete relocation of the highway. State of Indiana v. Ensley, Ind., 164 N.E.2d 342; Iowa State Highway Comm. v. Smith, 248 Iowa 869, 82 N.W.2d 755, 73 A.L.R.2d 680; Walker v. State, 48 Wash.2d 587, 295 P.2d 328; State ex rel. Merritt v. Linzell, 163 Ohio St. 97, 126 N.E.2d 53; State v. Hoblitt, 87 Mont. 403, 288 P. 181; Heil v. Allegheny County, 330 Pa. 449, 199 A. 341; Nelson v. State Highway Board, 110 Vt. 44, 1 A.2d 689, 118 A.L.R. 915; Annotation 118 A.L.R. 921. This conclusion is premised on the fact that an abutting owner has no property right in the continuation or maintenance of the flow of traffic past his...
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