Johnston v. Boise City

• Decision Date: 12 March 1964
• Docket Number: No. 9277,9277
• Parties: A. A. JOHNSTON, Plaintiff-Appellant, v. BOISE CITY, a municipal corporation, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 291

390 P.2d 291

87 Idaho 44

A. A. JOHNSTON, Plaintiff-Appellant, v. BOISE CITY, a municipal corporation, Defendant-Respondent.

No. 9277.

Supreme Court of Idaho.

March 12, 1964.

William A. Johnston, Boise, for appellant.

C. Stanley Skiles, Boise, for respondent.

McFADDEN, Justice.

Appellant Johnston, the owner of the two parcels of real property involved, instituted this action to enjoin respondent Boise City permanently, from proceeding with an order of the common council requiring the replacement of curb cuts adjacent to appellant's two parcels of land. The parcels involved, Lot 7, Block 23, (designated as the Bannock Street property), and Lot 2, Block 51, (designated as the Grove Street property), are in the Original Townsite of Boise City, and are owned by appellant.

The Bannock Street property is leased to the Colyear Motor Sales Company; it is a corner lot, occupying the southwest corner of Block 7, abuts Bannock Street on the south, and 11th Street on the west. From the curb cut in question, a driveway extends from Bannock Street across the sidewalk, to the property line.

The Grove Street property also is a corner lot being the northwest corner of Lot 2, Block 51, abutting Grove Street on the north, and Capitol Boulevard on the west. A part of this lot is leased to a business; the remaining portion, which is the only part in question in this action, is used for residential purposes.

On April 2, 1962, the Common Council ordered closure of designated curb cuts, and reconstruction of the curb. The effect of closing the curb cuts is to eliminate vehicular access from the street to the property. Pursuant to this order, notice was served on appellant to close the curb cuts within thirty days, otherwise the city would do so, at his expense. This notice was served on appellant by registered mail, but not served on either of the tenants of the respective properties.

At trial before the court, the manager of the Colyear Motor Sales Company testified that the Bannock street curb cut had not been used as a driveway since 1961, and that double doors opposite the curb cut were used only for pedestrian entrance and had not been used for vehicles to enter the building from the street for twelve years. It was also testified that on the Eleventh street side of the building there was another curb cut leading to double doors used for ingress and egress by motor vehicles from Eleventh street into the building. The building also had access for vehicular traffic from the alley in the block, but presently this entrance was not being used. In the center of the Bannock street curb cut a parking meter was maintained by the City. The record shows that vehicles had parked opposite this curb cut for many years.

A brick business building is situate on the north end of the Grove street property. Southerly therefrom is a house and a shed; next a vacant area opposite the Capitol Boulevard curb cut; and finally another house abutting on the alley. Due to the position of these buildings, and a building on the adjoining lot, there is no way to drive a motor vehicle onto the premises except over the curb cut. This curb cut and driveway is used for occasional fuel deliveries and removal of trash. The tenant of the house does not own an automobile. The curb cut fails to comply with the city specifications and is so abrupt that late model passenger automobiles cannot use it without dragging bottom. Fuel deliveries can be made from the street, and there is no necessity of a vehicle using the curb cut to remove trash.

The City supervisor of traffic safety testified that poorly placed driveways create parking and traffic problems, and since application for new curb cuts are constantly being granted it has been the policy of the city to close unused ones in order to meet demands for parking. He also stated that the Bannock street curb cut, although somewhat unsafe, was no more dangerous than others in the vicinity. He stated that the curb cut on Capitol Boulevard was so narrow that to enter the property a vehicle would have to make a 90~ turn, requiring it to swing illegally into another lane of traffic.

The City Commissioner of public works testified that curb cuts require additional efforts in street cleaning, and the incline of driveways and curb cuts are hazardous in alighting from a car.

From this and other testimony, the trial court found that the accumulation of ice and water at such curb cuts constitutes a burden on the municipality in the maintenance of its public streets and ways; that such curb cuts constitute a burden to the municipality in its regulation of vehicular traffic and parking. The court further found that the action of the common council in ordering closure of those curb cuts was a reasonable exercise of the police power of the City and did not constitute a taking of property. The court dismissed appellant's suit, and from the judgment entered, this appeal was taken.

Appellant asserts error in the trial court's determination that service of the notice on him alone complied with the requirement. Boise City Code § 14-803, which provides in part: 'A notice of the contents of the order provided for in section 14-802 shall be served upon the owner, tenant, or occupant of the property adjoining the proposed improvement * * *' He contends that under this provision notice must be given to the lessee and occupants, as well as, and in addition to the owners of the adjoining property. He cites Boone v. District Court, 38 Idaho 688, 224 P. 429, as authority upholding his position. The Boone case involved the question whether certain published notices involved in confirmation of the organization of a drainage district complied with the requirements of C.S. §§ 4510 and 4511 (now I.C. §§ 42-2919 and 42-2920). Those sections require notice to be given to 'all parties interested'. The notice was addressed 'to the land owners and * * * persons or corporations owning or interested in lands * * *.' The court held that this phrase did not include 'all parties interested' in the organization of the district nor to 'all parties interested in hearing the report of the commissioners.'

The language of the statute before the court in Boone v. District Court, supra, was inclusive; the language of the Boise City Code, § 14-803, now before us, requires notice 'be served upon the owner, tenant or occupant.' Other provisions of the Boise City Code, §§ 14-802 and 14-804 require that the name of the owner of the property to be set forth in the order, if known, and if not known, then the property be listed under the designation of 'unknown owners.' In case the affected property is unoccupied and the owner unknown, or if known, his address is unknown, the code makes provision for service of the notice by publication. In correlating these sections, it is our conclusion that Boise City Code § 14-803, reqauires service of the notice, personally or by registered mail upon the owner when both he and his address are known. Should personal service upon the owner be impossible by reason of either lack of knowledge of his address, or his name, then the alternative service upon the tenant or occupant is to be made. As thus construed the rights of the party basically affected will be protected under these provisions. Any other construction would fail to give the protection to the person primarily interested as contemplated by these provisions. There is no merit to this assignment of error.

The principal question to be resolved is whether the order of the common council directing the closure of the curb cuts was a reasonable regulation under the City's police powers, or whether such closing order constituted a taking under the constitutional provisions pertaining to eminent domain, (Idaho Const. Art. 1, § 14) or deprivation of property without due process of law (Idaho Const. Art. 1, § 13).

This court has consistently held that access to a public way is one of the incidents of ownership of land bounding thereon. Such right is appurtenant to the land and is vested right. In Farris v. City of Twin Falls, 81 Idaho 583, 586, 347 P.2d 996, this court stated:

'Access to a public way is one of the incidents of ownership of land bounding thereon. Such right is appurtenant to the land and is a vested right of which the lot owner cannot be deprived without just compensation. (Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, 286 P. 353).'

See also: Village of Sandpoint v. Doyle, 14 Idaho 749, 95 P. 945, L.R.A., N.S., 497; Independent School Dist. No. 1 of Twin Falls County v. Continental Oil Co., 49 Idaho 109, 286 P. 360; Hughes v. State, 80 Idaho 286, 328 P.2d 397; Mabe v. State, 83 Idaho 222, 360 P.2d 799; 10 McQuill'n, Municipal Corporations, § 30.63, page 671, note 75 and supplement (3rd ed. 1950); 22 A.L.R. 942; 66 A.L.R. 1052; 73 A.L.R.2d 652.

This right of access, however, may be regulated, for it is subservient to the primary rights of the public to the free use of the streets for travel and incidental purposes. Foster's Inc. v. Boise City, 63 Idaho 201, 212, 118 P.2d 721; Hickey v. Riley, 177 Or. 321, 162 P.2d 371, 375 (1945). Parking of vehicles is one of the uses of a street incidental to travel thereon. Without provisions for parking of vehicles, the right to the use of city streets for travel would unduly restrict the benefit of the public. Morris v. City of Salem, 179 Or. 666, 174 P.2d 192, 196 (1946). The legislature has by I.C. § 50-1141 delegated to the several municipalities of this state the authority, subject to constitutional limitations, to police the streets of the municipalities and to regulate traffic thereon. Fosters Inc. v. Boise City, supra.

This case presents the problem of reconciling the conflicting interests of the public with that of the abutting owner. Under its exercise of the police power and authority over the streets and in furtherance of the public good, the common council for sufficient reason, can...