Huff v. Indiana State Highway Commission, 29514

• Decision Date: 11 April 1958
• Docket Number: No. 29514,29514
• Citation: 238 Ind. 280,149 N.E.2d 299
• Parties: J. Floyd HUFF, Harriet C. Huff, Appellants, v. INDIANA STATE HIGHWAY COMMISSION, Indiana State Highway Department, Virgil W. Smith, William H. Sorrell, Deane E. Walker, as members of the Indiana State Highway Department, Edwin K. Steers, as Attorney General of the State of Indiana, Appellees.
• Court: Indiana Supreme Court

Page 299

149 N.E.2d 299

238 Ind. 280

J. Floyd HUFF, Harriet C. Huff, Appellants, v. INDIANA STATE HIGHWAY COMMISSION, Indiana State Highway Department, Virgil W. Smith, William H. Sorrell, Deane E Walker, as members of the Indiana State Highway Department Edwin K. Steers, as Attorney General of the State of Indiana, Appellees.

No. 29514.

Supreme Court of Indiana.

April 11, 1958.

Rehearing Denied May 26, 1958.

Schlosser, Young & Scholosser, Chalmer Schlosser, Jr., Symmes, Fleming & Symmes, Indianapolis, for appellants.

Edwin K. Steers, Atty. Gen., Richard G. Stewart, Frank X. Haupt and Jack C. Daw, Deputy Attys. Gen., for appellees.

EMMERT, Chief Justice.

This is an appeal from a judgment by the trial court denying relief to the appellants in an action, under Ch. 365 of the 1947 Acts, § 63-3001 to § 63-3030, Burns' 1951 Replacement (as amended), to review a determination and order of the State Highway Department of Indiana, which denied an application by appellants to have access to State Road No. 100 at the intersection of said road with 56th Street in the City of Indianapolis for filling station purposes. The assignment of errors has many specifications, but only the errors presented by the argument section of appellants' original brief, as required by Rule 2-17, will be considered, since failure to comply with the Rule waives any error. Rule 2-17, subsection (f).

On March 26, 1956, appellants filed a petition with the Department to open a driveway into State Road No. 100 which was on the east side of their read estate, for a filling station. On May 2nd the Department denied the petition. On June 4th appellants filed a petition to reconsider the first denial of the petition, upon which a hearing was had at which appellants appeared in person and were represented by counsel. This hearing fully complied with § 63-3024, Burns' 1951 Replacement. ^{1 1} The hearing before the Department was had June 4, 1956, and the matter then taken under advisement. On July 3rd, by a resolution duly adopted, the application for a permit was denied.

On November 2, 1955, by resolution duly adopted, the State Highway Department of Indiana found State Highway No. 100 was heavily traveled and designed for through traffic; that it served as a by-pass highway to the east, northeast and north of the City of Indianapolis; that it was part of a proposed 'Circum-Urban' or belt highway to extend completely around Indianapolis and connect all the State and United States highway routes entering the Indianapolis area; that it was part of a route of the national system of interstate highways; that a part of said highway on Shadeland Avenue, from a junction of U. S. Highway No. 40 to the intersection of State Highway 67, had been constructed as a four-lane highway with two separate roadways; and that the traffic conditions on said highway then and int he future justified the designation and establishment of a portion of this highway for approximately 9 miles, from a distance of 1,126 feet north of the intersection of said highway No. 100 with United States Highway No. 40 northward to the intersection of said highway with 82nd Street near the east edge of Castleton in Marion County, as a limited access facility pursuant to Ch. 245 of the 1945 Acts (as amended), §§ 36-3101 to 36-3111, Burns' 1949 Replacement. Upon such finding the resolution declared and constituted said State Highway No. 100 a limited access facility 'and that access to and egress from said State Highway No. 100, between said points, shall be and are hereby limited to the designated intersections at the following approximate locations * * *.' No access was provided for the place in controversy.

By § 1 of the Limited Access Facility Highways Act, the Legislature declared the Act was necessary 'for the immediate preservation of the public peace, health, and safety and for the promotion of the general welfare.' Section 36-3101, Burns' 1949 Replacement. Various other sections material to the issues involved follow:

'For the purposes of this act, a 'limited access facility' is defined as a highway or street especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or other persons have no right or easement or only a limited right or easement * * * by reason of the fact that their property abuts upon such limited access facility of for any other reason. * * *' Section 36-3102, Burns' 1949 Replacement.

'The highway authorities of the state, counties, cities, and towns, acting alone or in cooperation with each other or with any federal, state, or local agency of any other state having authority to participate in the construction and and maintenance of highways, are hereby authorized to plan, designate, establish, regulate, vacate, alter, improve, maintain, and provide limited access facilities for public use whenever such authority or authorities are of the opinion that traffic conditions, present or future, will justify such special facilities * * *.' Section 36-3103, Burns' 1949 Replacement.

'The state highway commission of Indiana [now the state highway department of Indiana, § 36-173b, Burns' 1949 Replacement (Supp.)] and the proper authorities of any county, city, or town having charge of any highway or street affected by this act, are authorized to design any limited access facility and to regulate, restrict or prohibit access as to best serve the traffic for which such facility is intended. * * * No person shall have any right of ingress or egress to, from, or across limited access facilities to or from abutting lands, except at such designated points at which access may be permitted, upon such terms and conditions as may be specified from time to time by rules and regulations adopted and promulgated as by law provided.' Section 36-3104, Burns' 1949 Replacement.

'For the purposes of this act, such authorities of the state, counties, cities, or towns, may acquire private or public property and property rights for limited access facilities and service roads, including rights of access, air, view, and light, by gift, devise, purchase or condemnation in the same manner as is now or hereafter may be provided by law to acquire such property or property rights for the laying out, widening or improvement of highways and streets within their respective jurisdictions. * * * The rights of all property owners who may claim damages, as provided by the Constitution of the state of Indiana, are preserved herein and may be enforced under the present laws of the state of Indiana.' Section 36-3105, Burns' 1949 Replacement.

'The highway authorities of the state, county, city, or town, may designate and establish limited access...