Johnson v. City of Plymouth, 47651

• Citation: 263 N.W.2d 603
• Decision Date: 20 January 1978
• Docket Number: No. 47651,47651
• Parties: Marvin JOHNSON, et al., Appellants, v. CITY OF PLYMOUTH, Respondent.
• Court: Supreme Court of Minnesota (US)

Page 603

263 N.W.2d 603

Marvin JOHNSON, et al., Appellants, v. CITY OF PLYMOUTH, Respondent.

No. 47651.

Supreme Court of Minnesota.

Jan. 20, 1978.

Rehearing Denied March 29, 1978.

Syllabus by the Court

The construction by a city of curb and gutter along a city street does not give rise to a right to compensation in abutting property owners pursuant to Minn.Const. art. 1, § 13, except where it is shown that such construction deprives an owner of reasonably convenient and suitable access to his property from the street. On the facts of this case, access to appellants' property was not so impaired as to render respondent's action a compensable taking under the Minnesota Constitution.

Miller, Neary & Zins and Joseph M. Goldberg and John (Jack) M. Miller, Minneapolis, for appellants.

LeFevere, Lefler, Pearson, O'Brien & Drawz, and Herbert P. Lefler, Minneapolis, for respondent.

Heard before ROGOSHESKE, TODD, and WAHL, JJ., and considered and decided by the court en banc.

TODD, Justice.

Marvin Johnson and Medicine Lake Bus Company, a Minnesota corporation, (appellants) own Lot 1 and Lot 2, Block 1, of the Glen Erie Addition in the city of Plymouth, Minnesota. The property is bounded on the north by 36th Avenue North and on the east by Kilmer Lane. A curb and gutter was installed on Kilmer Lane in 1969, regulating vehicular access to appellants' property. This action for damages was instituted against the city of Plymouth on the theory that the city had infringed appellants' property rights without awarding just compensation therefor. Pursuant to an agreement between the parties, the liability and damage issues were separated for trial. The court below considered the liability question only and held the city not liable. We affirm.

This matter was submitted to the trial court on a set of stipulated facts, the pertinent portions of which are reproduced below:

"1. Plaintiff, Medicine Lake Bus Company, is a Minnesota corporation of which Plaintiff, Marvin Johnson, is the principal owner.

"2. Defendant is a Minnesota municipal corporation.

"3. Plaintiffs are the sole owners of all the real property interest in Lots 1 and 2, Block 1, Glen Erie Addition, Hennepin County, Minnesota, otherwise known and numbered as 9625 36th Avenue North, Plymouth, Minnesota.

"4. Plaintiffs acquired the above-described property in 1962 and ever since that date have continuously used the property for the commercial purpose of operating a bus company.

"5. Kilmer Lane and 36th Avenue North, at all times relevant herein, were and are public thoroughfares within the City of Plymouth.

"7. When Plaintiffs acquired said property in 1962 there were no curbs, gutters or sidewalks on either 36th Avenue North or Kilmer Lane and the buses owned by Plaintiffs had access to and in fact entered the property from both of said streets at any and all points without restriction.

"8. In 1967 curb and gutter was installed on 36th Avenue North pursuant to a street improvement proceeding which was petitioned for by Plaintiffs and others. In 1969 curb and gutter was installed on Kilmer Lane pursuant to a street improvement petition of various parties not including Plaintiffs. Plaintiff Marvin Johnson attended the public hearing on the improvement and expressed his opposition to it. Sidewalk was installed on 36th Avenue North adjacent to Plaintiffs' property in 1974. Plaintiffs first gained knowledge of the location of curbing and cuts on Kilmer Lane at the time of the actual installation of the curbing and curb cuts on Kilmer Lane. At the time of this installation, Plaintiff Marvin Johnson expressed to Defendant's consulting engineer in charge of the operation his opposition to the placement and width of the curb cuts,( ¹) stating that they were not adequate for his use.

"10. The installation of the curbs, gutters and sidewalk as referred to above (was) done pursuant to public improvement proceedings under Chapter 429, Minnesota Statutes, and such proceedings were in all respects legal and proper with reference to the requirements of Chapter 429. Assessments to pay for the cost of such improvements were levied against benefited properties, including the property of Plaintiffs, and were paid in full without appeal by all property owners so assessed. Plaintiffs' action in paying the assessment was not intended to constitute a waiver of claims arising out of the installation of curbing and curb cuts on Kilmer Lane, but rather was for the sole purpose of keeping his accounts with Defendant current.

"11. Within six months following the installation of the curb and gutter on Kilmer Lane, Plaintiffs placed bituminous material between the top of the curb line of Kilmer Lane and the surface of the street which permitted Plaintiffs' buses to enter onto and exit from their property at any point on the street rather than to and from driveways between the curb cuts.

"12. The Defendant has regularly maintained Kilmer Lane from 1969 to date including, but not limited to, snowplowing, street cleaning, etc.

"13. On or about October 1, 1974, the present city engineer of the Defendant was advised of the presence of such bituminous material and requested Plaintiffs to remove it. When Plaintiffs failed to do so, employees of the Defendant removed the material and restored the curb line.

"14. Plaintiffs claim that the installation of the curb and gutter and curb cuts by Defendant resulted in an impairment of access to their property without due process of law and seek to require Defendant to condemn such access by eminent domain proceedings or, in the alternative, to pay money damages.

"16. Without prejudice to Defendant to hereafter deny the nature and extent of damages to Plaintiffs' property, if any, it is agreed by the parties that for the limited purposes of determining the legal issues raised by the above stipulated facts, such damages by way of impairment of access may be regarded by the Court as substantial."

The trial court found that the construction by the city of the curb and gutter along Kilmer Lane was a valid exercise of the city's police power and therefore did not constitute a compensable taking of private property. The issue presented on appeal is whether the installation of curb and gutter so restricted the right of access to appellants' property as to require compensation under the Minnesota Constitution.

Minn.Const. art. 1, § 13, provides that "(p)rivate property shall not be taken, destroyed or damaged for public use without just compensation * * *." This constitutional provision imposes a condition on the exercise of the state's inherent supremacy over private property rights. To be constitutionally compensable, the taking or damage need not occur in a strictly physical sense and can arise out of any interference by the state with the ownership, possession, enjoyment, or value of private property. See, Burger v. City of St. Paul, 241 Minn. 285, 293, 64 N.W.2d 73, 78 (1954); 2 Nichols, Eminent Domain, (3 ed.rev.) §§ 6.1, 6.3.

It is well settled under Minnesota law that property owners have a right of "reasonably convenient and suitable access" to a public street or highway which abuts their property. This right is in the nature of a property right. See, Hendrickson v. State, 267 Minn. 436, 446, 127 N.W.2d 165 173 (1964); State, by Mondale, v. Gannons Inc., 275 Minn. 14, 145 N.W.2d 321 (1966); State, by Mattson, v. Prow's Motel, Inc., 285 Minn. 1, 171 N.W.2d 83 (1969); Johnson Bros. Grocery v. State, Dept. of Highways, 304 Minn. 75, 229 N.W.2d 504 (1975). Like other property rights, the right of reasonable access can be infringed or "taken" by the state, giving the property owner a constitutional right to compensation.

Courts have long struggled with the notion of reasonable access and the compensable "taking" thereof. In so doing, they have adopted labels for the results they have reached which even today generate substantial linguistic and analytical confusion. Thus, if a governmental action has been found not to infringe the right of access, such action has been deemed a "reasonable" assertion of the police power and therefore noncompensable. ² On the other hand, where courts have determined that official action has eliminated a right of access, the action has been characterized as a constitutional "taking." ³ The result has been the creation of an unfortunate rhetorical device: Reasonable assertions of the police power are not compensable but the "taking" of a reasonable right of access is compensable. There is an obvious difficulty, however, with any attempted application of this statement as a rule of law. The statement itself provides no principled means for distinguishing a due process "taking" from a noncompensable exercise of police powers.

It seems apparent to us that the implementation of any improvement project on a public thoroughfare is undertaken in the interest of the public safety and welfare pursuant to inherent governmental police powers. At the same time, however, the exercise of such powers can operate to deny an abutting property owner the right of reasonable access which this court has frequently recognized. As we observed in Hendrickson v. State, 267 Minn. 436, 441, 127 N.W.2d 165, 170:

" * * * 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 public safety, but at the same time it may cause compensable injury to an abutting owner." (Italics supplied.)

The relationship between the state's police powers and the property owner's right to compensation was discussed in...