Iowa State Highway Commission v. Smith, 49186

• Decision Date: 07 May 1957
• Docket Number: No. 49186,49186
• Citation: 248 Iowa 869,73 A.L.R.2d 680,82 N.W.2d 755
• Parties: , 73 A.L.R.2d 680 IOWA STATE HIGHWAY COMMISSION, Appellant, v. William H. SMITH, Patricia Smith, and City of Des Moines, Iowa, Appellees.
• Court: Iowa Supreme Court

Page 755

82 N.W.2d 755

248 Iowa 869, 73 A.L.R.2d 680

IOWA STATE HIGHWAY COMMISSION, Appellant, v. William H. SMITH, Patricia Smith, and City of Des Moines, Iowa, Appellees.

No. 49186.

Supreme Court of Iowa.

May 7, 1957.

Norman A. Erbe, Atty. Gen., and Mitchell & Beving, Des Moines, for appellant.

Milton W. Strickler, Anthony T. Renda, and Leo S. Ballard, Des Moines, for appellee City of Des Moines.

Hansen, Wheatcraft & Galvin, and Don C. Swanson, Des Moines, for appellees William H. Smith and Patricia Smith.

GARFIELD, Justice.

This is an action by the Iowa Highway Commission (herein called the commission) against husband and wife (herein called defendants), owners of properties abutting a controlled-access highway, and the city of Des Moines (herein called the city) for declaratory judgment under rules 261-269, Rules of Civil Procedure, 58 I.C.A. The declaration sought is that limitations established by the commission and city upon access to the properties and prohibition of vehicular crossings, left turns and U turns, except at designated points, do not constitute 'taking' property for which compensation must be made under Article I, section 18, Iowa constitution, I.C.A.

Following trial to the court on stipulated facts it was adjudged the limitations upon access constitute such a taking but the prohibition of crossings, left turns and U turns, except at designated points, by vehicles does not. Both the commission and property owners (defendants) have appealed.

Acting under chapter 148, Acts, 56th General Assembly, approved April 15, 1955, I.C.A. § 306A.1 et seq., the commission and city designated Hubbell Avenue between certain points in Des Moines a controlled access facility for public use. The designated strip carries traffic of U. S. Highways 6 and 65 and Iowa Highway 64.

Defendants William H. Smith and wife own two parcels of realty abutting Hubbell Avenue that are affected by this action of the commission and city. One tract has a frontage of 216 feet on the northerly side of Hubbell which runs northeast and southwest (nearer east-west than north-south). On, roughly, the east hals of this tract defendants have a filling station with connected garage and cafe which caters primarily to heavy cross-country trucks. There is a space with a frontage on Hubbell of about 150 feet west of the filling station where trucks park and truckers sleep. About midway between the west end of the filling station and defendants' west property line, 65 feet back (north) from Hubbell Avenue, is a dwelling which they rent out. Just east of their 216 feet is a strip of ground, 50 feet due east and west, with a frontage of about 60 feet on Hubbell on which defendants have easement rights. (The difference between the 50 feet and 60 feet is due to the diagonal direction of the avenue.) This 50-foot strip abuts the west side of East 42d Street which runs due north and south and intersects Hubbell. The east part of the concrete approach to the gasoline pumps occupies the south part (nearly half) of this strip.

Up to now trucks have entered the filing station at any point from either east or west and left at any point in either direction. Under the combined action of the commission and city only two places of access to the filling station are permitted, each 34 feet wide. One of these places, which would doubtless be the entrance, is on the south part of the 50-foot strip east of defendants' property. The other, which would probably be the exit, is near the west end of the concrete approach to the gasoline pumps. These two driveways are 45 feet apart. The west one is about 155 feet east of defendants' west property line.

Also under action by the commission and city, traffic will be allowed to enter the filling station only from the east. East bound travelers may enter it only by making a U turn at East 42d Street and going back west a short distance to the east driveway. When leaving the station these travelers will be required to go west about 3,168 feet to East 38th Street and make a U turn there. No turns are permitted between 38th on the west and 42d on the east. Improvement of the highway calls for raised 'jiggle' bars on the center line between designated turning points to deter turns at other places.

Defendants purchased their filling station property December 23, 1954, for $50,000 and then completely remodeled it to provide garage and cafe facilities. It is zoned 'C-2' for commercial purposes.

The other property defendants own is their home with a frontage of 228 feet along the southerly side of Hubbell Avenue. The east line of this property is approximately 541 feet west of the west line of the filling station property on the north side of the avenue. Their dwelling house is 15 feet west of their east line and 120 feet south from the highway. It is about 140 feet from the house to the west property line. There are no buildings upon this part. It could be used as a residential site.

It is zoned for residential purposes.

Up to now defendants have had unlimited access to this 228 feet frontage from either direction. However, the commission and city have now provided only a single point of access to it, 18 feet wide. The east side of this driveway is about seven feet west of defendants' east line. Thus there are approximately 203 feet between the drive and the west property line. Defendant William H. Smith is a contractor and has construction equipment stored adjacent to the residential property.

Heretofore defendants could cross Hubbell Avenue by motor vehicle between their home and business properties by driving from 500 to 600 feet. When the contemplated highway improvement is made they may cross only at East 38th or 42d Street. The increased distance in traveling from their home to place of business and back again will approximate a mile. In the future the residence property may be entered from the highway only when going east and upon leaving one must drive east as far as 42d Street. West bound travelers desiring to enter the residence property will be required to go west to 38th Street, make a U turn there and go back east to the driveway.

I. We consider first the commission's appeal from the portion of the judgment, adverse to it, which provides the restrictions upon access to defendants' properties constitute a taking thereof which must be condemned and paid for. There appears to be no controversy between the commission and city. The contest is between the commission and defenant Smiths.

It is now well settled in Iowa and we think in most jurisdictions that real property consists not alone of the tangible thing but also of certain rights therein sanctioned by law, such as the right to access--ingress and egress. It is clear owners of property abutting a street or highway cannot be deprived by public authorities of all access thereto without just compensation. As the commission concedes, such deprivation amounts to a taking of the property. Gates v. City of Bloomfield, 243 Iowa 671, 675, 53 N.W.2d 279, 281, and citations; Breinig v. County of Allegheny, 332 Pa. 474, 2 A.2d 842, 847-848; 39 C.J.S. Highways § 141, pp. 1080-1082; 18 Am.Jur., Eminent Domain, section 183; 25 Am.Jur., Highways, section 154.

There is no claim defendants have been totally deprived of access to either tract. However, we have said several times that the destruction of the right of access or the substantial or material impairment or interference therewith by the public authorities is a taking of the property. Nalon v. City of Sioux City, 216 Iowa 1041, 1044, 250 N.W. 166; Liddick v. City of Council Bluffs, 232 Iowa 197, 232-233, 5 N.W.2d 361, 379; Anderlik v. Iowa State Highway Comm., 240 Iowa 919, 923-924, 38 N.W.2d 605, 607-608; Gates v. City of Bloomfield, supra. Other authorities contain like statements. Petition of Burnquist, 220 Minn. 48, 19 N.W.2d 394, 397; Annotation 22 A.L.R. 942.

In reliance upon what we have said in these cases defendants contend there is such a substantial impairment or interference with their right of access as constitutes a taking of their properties for which compensation must be made. This was apparently the view of the trial court. Although we have no thought of receding from these precedents we do not regard them as controlling here.

In Nalon v. City of Sioux City, supra, a ditch was dug in the street abutting plaintiff's property which made access at any point difficult. The Liddick case holds the construction of a large viaduct in the street was such an interference with the rights of abutting property owners to access, light, air and view as amounted to a taking of their property. The Anderlik opinion, supra, applies the Liddick decision to property outside a city in front of which a high embankment was built. In Gates v. City of Bloomfield, supra, the city had authorized use of the street abutting plaintiff's property for parking large buses, taking on and discharging passengers and piling baggage. We held this was a nuisance for which the city was liable in damages.

None of these precedents considers the extent of the right of access to property from an adjoining street or highway. Cartainly none of them holds an abutter is entitled, as against the public, to access to his land as all points between it and the highway.

It seems fairly well settled that, while access may not be entirely cut off, an owner is not entitled, as against the public, to access to his land at all points between it and the highway. If he has free and convenient access to his property and the improvements on it and his means of ingress and egress are not substantially interfered with by the public he has no cause for complaint. 39 C.J.S. Highways § 141, p. 1081; 2 Elliott Roads and Streets, section 882, page 1153; Wegner v. Kelley, 182 Iowa 259, 265, 165 N.W. 449; Genazzi v. Marin County, 88 Cal.App. 545, 263 P. 825, 826; State Highway Board v. Baxter, 167 Ga. 124, 144 S.E. 796; State ex rel. Gebelin...