James v. State By and Through Idaho Bd. of Highway Directors

• Citation: 397 P.2d 766,88 Idaho 172
• Decision Date: 22 December 1964
• Docket Number: No. 9509,9509
• Parties: Herb JAMES, and Mrs. Herb James, Plaintiffs-Appelants, v. STATE of Idaho, a commonwealth acting by and through the IDAHO BOARD OF HIGHWAY DIRECTORS, Defendant-Respondent.
• Court: United States State Supreme Court of Idaho

Page 766

397 P.2d 766

88 Idaho 172

Herb JAMES, and Mrs. Herb James, Plaintiffs-Appelants, v. STATE of Idaho, a commonwealth acting by and through the IDAHO BOARD OF HIGHWAY DIRECTORS, Defendant-Respondent.

No. 9509.

Supreme Court of Idaho.

Dec. 22, 1964.

Thomas A. Mitchell, Coeur d'Alene, for appellants.

Faber F. Tway, Chief Legal Counsel, Anton Hohler, Jack C. Riddelmoser, Dept. of Highways, Boise, for respondent.

McFADDEN, Justice.

Mr. and Mrs. Herb James, as plaintiffs (appellants herein) instituted this action to recover damages for alleged deprivation of access to their business property. Subsequent to the filing of this action, Mr. James passed away; by stipulation his widow, the administratrix of his estate, has been substituted as a plaintiff.

Appellants by their complaint seek $40,000 damages for loss of value to their business property as a result of alleged impaired access to it. To the complaint respondent filed a motion to dismiss, which the trial court, under the provisions of I.R.C.P. 12(b) treated as a motion for summary judgment, and dismissed the action. It is from such summary judgment that this appeal was taken, with the sole issue for consideration being whether the court erred in entering the summary judgment.

While a certificate has not been submitted as is required by appellate Rule 35, no prejudice appears therefrom. The judgment recites that in determining the issues presented by the motion to dismiss, the trial court considered, '* * * the pleadins, affidavits and exhibits of the parties hereto, * * *', all of which instruments are before this court.

Appellants by their complaint allege that they are the owners of business property near Kootenai, Idaho, known as Wolf Lodge Inn; that respondent constructed a new highway; that their business property was contiguous to U. S. Highway No. 10, and they had direct access to and from that highway, and their customers had direct access to their business of selling food, drinks and lodging to the public; that the new highway has only limited access in conformity with the standards of the National System of Interstate and Defense Highways, and was so constructed as to deprive the appellants of their access to U.S. Highway No. 10; that a solid link fence was constructed barring the appellants and their customers from access from U.S. Highway No. 10 to their property; that the Wolf Lodge and adjacent area was open to the public for food, drinks, lodging and camping and was so sued by the public; that appellants had made substantial improvements thereon; that the construction of the new highway had deprived the appellants of access to the appellants' property and had caused an actual impairment of the right of access to their damage in the sum of $40,000.00.

In response to request for admission of facts, the appellants admitted: that the respondents acquired no right of way from them; that some slight access still remains to the highway, stating that east bound traffic must travel one and a quarter miles off the main highway to get to their premises and must return by the same route to achieve access to the highway; that old U.S. Highway No. 10 was converted to a frontage road and joined at both ends, east and west of their property with the new highway, but qualified such admission by stating that the frontage road joins the new highway three-fourths of a mile east and approximately a mile and a quarter west of appellants' property.

In respondent's affidavit by Mr. Pearring, an engineer of the Idaho Department of Highways, it is stated that the affiant was familiar with the highway project leading to the construction of the new highway and with the appellants' property. The affidavit further states:

'* * * That the said project provided for the construction of a fourlane divided highway, designated as Interstate I-90, adjacent to the then existing U.S. Highway 10 to which the plaintiffs had and still have access; that there is no access between the eastbound and westbound lanes of the said divided highway; that there is full two-way access from said former U.S. Highway 10, now designated as a frontage road, and the said Interstate Highway I-90, by means of an interchange at Station 231

Certain highway maps of the area in question were attached to this affidavit. By stipulation of counsel at the hearing before this court, an aerial photograph of the highway as constructed, was submitted.

The maps and photograph show that former U.S. Highway No. 10 was adjacent to appellants' property. The new four lane highway, I-90, parallels the old highway. West of appellants' property an overhead interchange gives access to the frontage road from the new highway for vehicles travelling in both directions. East of appellants' property a one-way outlet from the new highway gives access to the frontage road for vehicles travelling west.

Mr. James in his affidavit submitted in opposition to the showing made by respondent, stated that as concerns east bound traffic on the new highway his business has been cut off from access in that:

'* * * as concerns automobile and light truck traffic, the same must, without any signs advising the travelers as to availability of facilities, pull off the main highway and follow a winding and twisting overpass, proceeding one and one-fourth miles to plaintiffs' business, after which they must return by the same route one and one-fourth miles to get back onto the freeway. As concerns tractor-trailer traffic, the same cannot safely negotiate the sharp turns on the overpass leading to and from plaintiffs' property and have ceased even attempting to do so.

'As concerns west bound traffic, the same must pull off the west bound lane on the freeway onto the frontage road three-fourths of a mile before reaching plaintiffs' property, all without advice about facilities available along the frontage raod.

I.R.C.P. 56(c) provides in part: 'The [Summary] judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'

From the record before the court it is our conclusion that aside from a question of damages there is no genuine issue as to any material fact remaining. Any issue of damages, of course, would only arise in the event that appellants have shown themselves to be entitled to relief.

Appellants claim they have shown themselves to be entitled to relief, asserting that interference with business access is a 'taking' of property, citing: Hughes v. State, 80 Idaho 286, 328 P.2d 397; Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, 286 P. 353; and also the creation of a cul-de-sac where none before existed is an interference with access, citing Mabe v. State ex rel. Rich, 83 Idaho 222, 360 P.2d 799.

The Continental Oil Co., case was an action to enjoin enforcement of an ordinance prohibiting the erection of a service station within 500 feet of a public school...