Hendrickson v. State, 38692

• Decision Date: 20 March 1964
• Docket Number: No. 38692,38692
• Citation: 267 Minn. 436,127 N.W.2d 165
• Parties: H. O. HENDRICKSON et al., Plaintiffs, H. O. Hendrickson and Fanny W. Hendrickson, Appellants, v. STATE of Minnesota and Walter F. Mondale, its Attorney General, and James C. Marshall, its Commissioner of Highways, Respondents.
• Court: Minnesota Supreme Court

Page 165

127 N.W.2d 165

267 Minn. 436

H. O. HENDRICKSON et al., Plaintiffs, H. O. Hendrickson and Fanny W. Hendrickson, Appellants, v. STATE of Minnesota and Walter F. Mondale, its Attorney

General, and James C. Marshall, its Commissioner

of Highways, Respondents.

No. 38692.

Supreme Court of Minnesota.

March 20, 1964.

Syllabus by the Court

Notwithstanding the availability of a frontage road from which his abutting property has circuitous access to the main thoroughfare at remote interchanges, an owner suffers compensable damage if the highway to which he previously had immediate and unlimited access is rebuilt on the existing right-of-way in a manner which denies him reasonably convenient and suitable access to the main thoroughfare in at least one direction.

Nitzkowski & Bray, Mankato, for appellants.

Richard E. Kyle, B. C. Hart, David C. Forsberg, St. Paul, Harold LeVander, South St. Paul, for appellants amici curiae.

Walter F. Mondale, Atty. Gen., Rolf O. Slen, Deputy Atty. Gen., William J. Young, Sp. Asst. Atty. Gen., for respondents; Sydney Berde, St. Paul, of counsel.

Donald L. Lais, Corp. Counsel, Thomas J. Stearns, Asst. Corp. Counsel, St. Paul, for respondents amici curiae.

OTIS, Justice.

These proceedings were brought by Hendrickson and Brown as vendee and vendor of property abutting a 'controlled access highway' in the outskirts of the city of Rochester. The relief sought is to require the state to institute condemnation proceedings, or in the alternative to pay plaintiffs damages, for denying them access to the main traveled portion of the highway which is newly constructed on the previously established right-of-way adjoining plaintiffs' property. From a summary judgment of dismissal, plaintiffs appeal.

The action was submitted on stipulated facts. Prior to the conversion to a controlled-access highway, plaintiffs' property abutted U.S. Highway 63, a conventional two-lane roadway on a 200-foot right-of-way approximately 2 miles south of the city of Rochester. Traffic moved in both directions on a tarvia surface 28 feet in width, adjacent to which were gravel and dirt shoulders. Plaintiffs' property was 85 feet west of the traveled portion of the highway and had access to it over two connecting roadways. The real estate in question had a frontage of 123 feet and an average depth of approximately 265 feet. It was used for a motel, constructed in the year 1953 and sold to the Hendricksons by the Browns in 1956. Thereafter the state designated the thoroughfare a controlled-access highway, and in 1958 began a reconstruction program which is the subject of this litigation.

The main traveled portion of the highway is now divided into two one-way surfaces, each 24 feet in width and separated by a 70-foot median strip. To the west is a 40-foot strip dividing the southbound lane from a new frontage or service road which is 24 feet in width, the west edge of which is now 40 feet from plaintiffs' east property line and separated from it by another median strip. Plaintiffs have access to the service road over the same driveways they previously used now reduced in length from 85 feet to 40 feet. There are temporary crossovers 100 feet north and 800 feet south of plaintiffs' property, furnishing access between the service road and the main highway in both directions. The changes here under consideration are illustrated in plats we have included as part of the opinion.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The state has taken no additional property on plaintiffs' side of the right-of-way in converting to a controlled-access highway but has located the surfaced traffic lanes of both the through highway and the service road within an area consisting of the previously existing right-of-way and 22 additional feet on the east. There are, however, physical as well as legal barriers preventing direct access to the main highway from plaintiffs' property.

The trial court held that by furnishing plaintiffs a service road adjacent to their property the state had afforded them access equivalent to what they previously enjoyed, except for the inconvenience of a circuitous route to the through highway for which no damages were recoverable.

The Minnesota Constitution by amendment adopted in 1896 confers a right to compensation for damaging as well as for taking private property. ¹ By statute a controlled-access highway is one to which an abutting property owner may have only limited access or no access whatever. ² Minn.St.1957, § 160.702, subd. 3, and Minn.St. St. 160.08, subd. 3, prohibit ingress to and egress from, or travel across, controlled-access highways except at points designated by appropriate authorities, but to the extent property rights are taken, the statutes require compensation by purchase or condemnation. Minn.St.1957, § 160.702, subd. 4; Minn.St. 160.08, subds. 4 and 5. In mitigation of damages, however, the statutes provide for the construction of service roads where a cul-de-sac results. L.1959, c. 500, art. II, § 24, subd. 2. Cf. Minn.St. 161.24, subd. 3.

The narrow question which we must determine is whether or not plaintiffs' property has suffered compensable damage by being denied access to the main thoroughfare except at interchanges yet to be designated, if the property has unlimited access to a service road over which the main thoroughfare may be reached by a circuitous route.

Since the highway authorities have a right and duty to eliminate the temporary crossovers whenever they deem it advisable to do so, we hold that the crossovers may not be considered in mitigation of damages. ³ If plaintiffs are entitled to compensation it is based on the assumption that access to the main thoroughfare will only be available at whatever distance from plaintiffs' property the authorities may hereafter designate. The proximity or remoteness of interchanges may not only affect the right to damages but the amount of damages as well.

The weight of authority, including Minnesota, treats access to a public highway from abutting property as a right which may not be denied without compensation. ⁴ Where, as here, there has been no taking of additional land and the abutting property still has access to a service road constructed on the old right-of-way but can no longer be reached from the main thoroughfare except by a circuitous route, the problem of dividing the consequential economic impact between the abutting owner and the traveling public presents a difficult question of public policy. ⁵ All courts seem to agree that it the regulation or restriction falls within the state's 'police power,' no compensable loss has occurred. ⁶ Included in this category are the establishment of one-way streets and lanes of traffic; median strips prohibiting or limiting crossovers from one lane of traffic to another; restrictions on U-turns, left and right turns, and parking; and regulations governing the weight, size, and speed of vehicles. No compensable damages are sustained by such restrictions and regulations which govern all motorists, including abutting property owners, once they are on the traveled portion of the thoroughfare. ⁷

While courts have assumed that designating a regulation an exercise of police power prevents compensation by eminent domain proceedings, for practical purposes this is simply a convenient way of describing which activities confer a right to damages and which do not. The prohibiting or limiting of access to a highway may well be an exercise of police power in the sense that it is designed to promote traffic safety, but at the same time it may cause compensable injury to an abutting owner. The damage to him must be different in kind and not merely in degree from that experienced by the general public. ⁸ The weight of authority, with which we agree, holds that a property owner has no vested interest in the continued flow of the main stream of through traffic, and the state may divert it to a new location without being liable for consequential economic losses which owners abutting on the old highway may sustain. ⁹ Those who are not abutting owners have no right to damages merely because access to a conveniently located highway may be denied, causing them to use a more circuitous route. ¹⁰

While some courts have insisted that owners are not justified in assuming a highway will remain 'a changeless road in a changing world,' ¹¹ this position begs the question. By granting or withholding damages we determine whether such an assumption is well founded. In any case, historically the right to access has been based on a number of sound factors. In some instances the original owner has dedicated a part of his land to the public for roadway purposes, and hence he and his successors deserve some special consideration. In other cases the roadway has been built with taxes and assessments paid by the abutting owners. It has been suggested that not uncommonly the original owner actually participated in the physical construction of the highway and thereby earned a privilege superior to that of the general public. ¹²

In the instant case the property is located on a busy highway at the outskirts of a prosperous community. It is likely that its highest and best use was for commercial purposes such as the motel which was built. ¹³ The accessibility to the property from the highway and its proximity to the city of Rochester attracted the patronage of the traveling public ¹⁴ and gave the property a special status which may entitle the owners to damages notwithstanding the circuitous access afforded by a service road. We therefore hold that plaintiffs may have been deprived of a substantive right which the construction of an abutting service road does not necessarily restore or replace.

So-called 'freeways' do not perform the function of 'land service roads,' which were built for transportation to local schools, churches, and market places. They are desiged almost...