Killinger v. Twin Falls Highway Dist.

• Citation: 135 Idaho 322,17 P.3d 266
• Decision Date: 21 December 2000
• Docket Number: No. 25508.,25508.
• Parties: G. Carter KILLINGER, Jr. Donna E. Killinger, dba Highway 30 Garage, Plaintiffs-Appellants, v. TWIN FALLS HIGHWAY DISTRICT; and Idaho Transportation Department, Defendants-Respondents, and Dave Burgess, Director; Kenneth Thaete, Chairman; Arthur R. Bailey, Doug Howard, Commissioners; Dwight Bower, Director; Monte Fiala, Administrator; Leon Smith, Mike Mitchell, John Combo, Monte McClure, Charles Winder, Neil Miller, John McHugh, Board Members; Jim Ross, Chief Engineer; Scott Malone, Assistant Engineer; John Wanamaker, Road Engineer; Marylyn Johnson, Supervisor; and John and Jane Doe, one (1) through ten (10), each in their individual capacities, Defendants.
• Court: United States State Supreme Court of Idaho

17 P.3d 266

135 Idaho 322

G. Carter KILLINGER, Jr. Donna E. Killinger, dba Highway 30 Garage, Plaintiffs-Appellants, v. TWIN FALLS HIGHWAY DISTRICT; and Idaho Transportation Department, Defendants-Respondents, and Dave Burgess, Director; Kenneth Thaete, Chairman; Arthur R. Bailey, Doug Howard, Commissioners; Dwight Bower, Director; Monte Fiala, Administrator; Leon Smith, Mike Mitchell, John Combo, Monte McClure, Charles Winder, Neil Miller, John McHugh, Board Members; Jim Ross, Chief Engineer; Scott Malone, Assistant Engineer; John Wanamaker, Road Engineer; Marylyn Johnson, Supervisor; and John and Jane Doe, one (1) through ten (10), each in their individual capacities, Defendants.

No. 25508.

Supreme Court of Idaho, Twin Falls, March 2000 Term.

December 21, 2000.

Rehearing Denied January 12, 2001.

Rolig Peterson, Twin Falls, for appellant. Jeffrey E. Rolig argued.

Hon. Alan G. Lance, Attorney General; Steven M. Parry, Deputy Attorney General, Boise, for respondent. Steven M. Parry argued.

SILAK, Justice.

Appellants G. Carter Killinger and Donna E. Killinger (the Killingers) appeal from an order granting summary judgment and dismissing their inverse condemnation claim against respondents Twin Falls Highway District (the District) and the Idaho Transportation Department (ITD). We affirm the summary judgment, in part, but vacate in part and remand the case for further proceedings.

I. FACTS AND PROCEDURAL BACKGROUND

A. Facts

The Killingers own lots 10 through 20 of Block 3 of the Clear Brook Acres Subdivision, where the Killingers operate the Highway 30 Garage. The subdivision plat was recorded on June 25, 1960, and includes a 115-foot strip of land labeled as the "Access Road." Prior to the highway expansion, the Access Road was bounded on the north by the Killingers' property and on the south by U.S. Highway No. 30. In 1978 the District issued quitclaim deeds conveying to the Killingers the northern 30 feet of the Access Road. The conveyance narrowed the District's right of way in the Access Road to 85 feet. In February 1980, the District granted the Killingers an encroachment permit that allowed construction of a fence on the Access Road. The minutes from the District meeting in which the permit was granted state that the fence would be allowed "until such time that [the district] would need the right of way."

On July 23, 1993, the Killingers met with the District Commissioners to discuss the widening of Highway 30 and the District's proposal to transfer its right of way in the Access Road to the ITD. The expansion plan included the construction of a "buffer zone" over the Access Road consisting of a curb and gutter system. Upon completion of the proposed modification, the edge of Highway 30's pavement would be 38 feet from the Killingers' property. In November 1994, the District and the ITD entered into a Road Closure and Road Maintenance Agreement under which the District transferred its right of way in the Access Road to the ITD despite the Killingers' opposition.

B. Procedural Background

On November 1, 1996, the Killingers filed a complaint alleging that the proposed widening of Highway 30 would be an unlawful taking of the Killingers' property without compensation. On August 31, 1998, the parties filed a stipulation of facts. The parties filed cross-motions for summary judgment. The district court granted summary judgment against the Killingers, ruling that the actions taken by the District and the ITD did not constitute a taking of the Killingers' property because the Killingers had failed to demonstrate that the modifications to the highway constituted a substantial impairment to their right to access.

II. ISSUES ON APPEAL

The appellants raise the following issues on appeal:

A. Whether the removal of the Access Road and the expansion of Highway 30 constitute a taking of the Killingers' property that requires compensation. Whether the loss of parking in the "buffer zone" constitutes a taking.

1. Whether the expansion of the highway into the Access Road was a change in the character of the use for which the Access Road was dedicated, therefore requiring compensation.

2. Whether the expansion of Highway 30 into the Access Road was an unreasonable impairment of the Killingers' right to access their property.

B. Whether the Killingers are entitled to attorney fees.

III.

STANDARD OF REVIEW

In an appeal from an order granting summary judgment, this Court applies the same standard of review used by the district court in ruling on a motion for summary judgment. See First Security Bank v. Murphy, 131 Idaho 787, 790, 964 P.2d 654, 657 (1998)

; Avila v. Wahlquist, 126 Idaho 745, 747, 890 P.2d 331, 333 (1995). Summary judgment is appropriate only when the pleadings, depositions, affidavits and admissions on file show that there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. See Murphy, 131 Idaho at 790,

964 P.2d at 657.

Generally, when considering a motion for summary judgment, a court liberally construes the record in the light most favorable to the party opposing the motion and draws all reasonable inferences and conclusions in that party's favor. See Brooks v. Logan, 130 Idaho 574, 576, 944 P.2d 709, 711 (1997)

. However, where the evidentiary facts are undisputed and the trial court rather than a jury will be the trier of fact, "summary judgment is appropriate, despite the possibility of conflicting inferences because the court alone will be responsible for resolving the conflict between those inferences." Murphy, 131 Idaho at 790,

964 P.2d at 657; see also Riverside Dev. Co. v. Ritchie, 103 Idaho 515, 519, 650 P.2d 657, 661 (1982). Moreover, when "both parties file a motion for summary judgment relying upon the same facts, issues, and theories, the parties essentially stipulate that there is no genuine issue of material fact which would preclude the district court from entering summary judgment." Hunting v. Clark County School Dist. No. 161, 129 Idaho 634, 637, 931 P.2d 628, 631 (1997) (citing Brown v. Perkins, 129 Idaho 189, 191, 923 P.2d 434, 436 (1996)).

IV. ANALYSIS

A. The District Court Erred In Granting Summary Judgment.

This Court has recognized the right of a property owner to access a public way is a vested property right appurtenant to the land abutting the public way in question, and that an unreasonable limitation upon such a right may constitute a taking requiring compensation. See Brown v. City of Twin Falls, 124 Idaho 39, 41, 855 P.2d 876, 878 (1993)

(citing Johnston v. Boise City, 87 Idaho 44, 390 P.2d 291 (1964); Farris v. City of Twin Falls, 81 Idaho 583, 347 P.2d 996 (1959); Hughes v. State, 80 Idaho 286, 328 P.2d 397 (1958)); see also Bare v. Dept. of Highways, 88 Idaho 467, 471, 401 P.2d 552, 554 (1965). When the state appropriates property without going through the procedure of a condemnation, the property owner may initiate an inverse condemnation suit and request compensation. See Reisenauer v. State, 120 Idaho 36, 39, 813 P.2d 375, 378 (Ct.App.1991) (citing Rueth v. State, 100 Idaho 203, 220 n. 4, 596 P.2d 75, 92 (1978)).

The Killingers claim that the widening of the highway was a taking because the removal of the Access Road makes it impossible to put their land to its historic use. The Killingers argue that they have a property right in providing access to semi and tow trucks that would deliver freight shipments and their customers' automobiles to the Highway 30 Garage. The Killingers argue the only way for such trucks to currently access the property is for the trucks to back into the Killingers' property from the traffic lane of Highway 30, and that the risks in making deliveries in this fashion are too great to make the continued operation of the business feasible. The Killingers also argue that the highway expansion has eliminated a large portion of their parking space. Since the widening of the highway impairs the Killingers' traditional access to the property and allegedly makes the operation of their business impossible, the Killingers argue that the changes made to the highway constitute a taking for which they are entitled to compensation.

While the expansion of Highway 30 may cause inconvenience to the Killingers, an inverse condemnation action cannot be maintained unless an actual taking of private property is established. See Snyder v. State, 92 Idaho 175, 179, 438 P.2d 920, 924 (1968)

. This Court has observed that "all inconveniences resulting from changes in construction or regulation on public highways are not compensable in this state." See id. This Court has also held "that the determination of whether or not there was a taking is a matter of law to be resolved by the trial court." Tibbs v. City of Sandpoint, 100 Idaho 667, 670, 603 P.2d 1001, 1004 (1979) (citing Rueth v. State, 100 Idaho 203, 596 P.2d 75 (1978)).

1. The loss of parking in the "buffer zone" does not constitute a taking.

The Killingers argue that the construction of the "buffer zone," consisting of a curb and gutter system, prevents the customary use of the area as customer parking on the Access Road. The Killingers include the loss of parking as part of their property right to access, which has been taken by the government by inverse condemnation.

In Snyder v. State, the plaintiff sought inverse condemnation damages when Boise's Main Street became part of the state highway system in 1964. As part of the conversion, Snyder's curb cut along Main Street was eliminated and parallel and angle parking on Main Street was prohibited. Snyder claimed that removing the curb cut impaired his customers' access to his property, which was essential to the operation of his business. See 92 Idaho at 176-77, 438 P.2d at 921-22.

In Snyder, this Court held the landowner was not entitled to compensation for the removal of the cutouts and the prohibition of parking. This Court observed that, as in the instant case, the land upon which...