Lehman v. Iowa State Highway Commission

Decision Date17 November 1959
Docket NumberNo. 49644,49644
Citation99 N.W.2d 404,251 Iowa 77
PartiesGeorge E. LEHMAN, and George E. Lehman as Executor of the Estate of William F. Lehman, Deceased, Appellees, v. IOWA STATE HIGHWAY COMMISSION, Appellant.
CourtIowa Supreme Court

William L. Meardon, Iowa City, C. J. Lyman, Sp. Asst. Atty. Gen., and Daniel T. Flores, Gen. Counsel, Iowa State Highway Commission, Ames, for appellant.

Arthur O. Leff, Iowa City, for appellees.

GARFIELD, Justice.

This is an appeal by Iowa State Highway Commission, defendant-condemnor, from an award of compensation, following trial in district court, for the taking of a strip of land for a new controlled-access highway across plaintiffs' farm. Plaintiffs had appealed to the court from the award of the commissioners or 'jury' appointed for that purpose. The two errors assigned here relate to the district court's instructions to the jury.

The condemned strip, containing 3.4 acres, was taken in relocating U. S. Highway 6 in Iowa City and vicinity. Twelve acres lie north of the new highway and about 104 acres south of it. (The new highway goes east and west at this point.) The farm is nearly four times as long, north and south, as its width east and west. No direct access to the new highway from plaintiffs' land is to be permitted.

A north and south public highway abuts plaintiffs' farm on the west for its entire length of nearly a mile. The new highway does not interfere with direct access to plaintiffs' land along its west line from any point on the existing north and south highway except where new U. S. 6 crosses it.

The condemnation was instituted pursuant to what is now chapter 306A, Code, 1958, I.C.A., providing for the establishment of controlled-access highways. Section 306A.1 states: 'Declaration of policy. The legislature hereby finds, determines, and declares that this chapter is necessary for the immediate preservation of the public peace, health, and safety, and for the promotion of the general welfare.'

Section 306A.2 defines a controlled-access facility 'as a highway or street especially designed for through traffic, and over, from or to which owners or occupants of abutting land or other persons have no right or easement or only a controlled right or easement of access, light, air, or view by reason of the fact that their property abuts upon such controlled-access facility or for any other reason.'

Section 306A.4 provides in part: 'No person shall have any right of ingress or egress to, from, or across controlled-access facilities to or from abutting lands, except at such designated points at which access may be permitted, upon such terms and conditions as may be specified from time to time.'

I. Defendant commission's first assigned error is that the trial court erred in allowing the jury to consider as an element of damage the deprivation of direct access between the new controlled-access highway and plaintiffs' remaining property adjacent thereto.

The commission asked the court to instruct the jury, '* * * the rights of plaintiffs to access to U. S. Highway No. 6 as relocated are condemned, but you are told that such loss of access is not an element of damages, and you cannot allow or consider any damages on this account in arriving at your verdict.'

The commission duly objected to the court's refusal to include this request in the instructions given for the reason that plaintiffs had no right of access to new U. S. 6 because it was not in existence and they could not have access to something that did not exist; defendant, therefore, is not taking any access from plaintiffs which they had prior to establishment of the improvement.

The court gave no instruction on the subject referred to in the request. However, instruction 10 states that in determining the fair and reasonable market value of plaintiffs' property the jury is authorized to consider several designated matters, including 'the increased inconvenience, if any, of access from one part of the farm to another; the increased inconvenience, if any, with the use and enjoyment of the premises arising from the taking * * * together with all other facts and circumstances bearing upon the fair and reasonable market value of plaintiffs' property and which will throw light upon the question for your determination.'

Before arguments to the jury it was stipulated that an objection be interposed by defendant (commission) to any arguments by plaintiffs' counsel to the jury relative to damages allegedly sustained by plaintiffs by reason of condemnation of direct access to Highway 6 as relocated. The court overruled the objection and plaintiffs' counsel argued to the jury that deprivation of direct access to new Highway 6 constituted an element of damages for which plaintiffs should be compensated.

Iowa State Highway Commission v. Smith, 248 Iowa 869, 82 N.W.2d 755, holds that where an existing unlimited-access highway is converted into a controlled-access highway, an adjoining owner may not be deprived, without just compensation, of his existing right to reasonable access to his property. 'No hard and fast rule can be stated as to whether an abutting property owner has been denied access that is reasonable * * *. In most instances the question is one of fact, not of law, and its determination depends largely upon the evidence in the particular case.' At page 877 of 248 Iowa, at page 760 of 82 N.W.2d

The Smith decision is approved and the language just quoted is repeated in Wilson v. Iowa State Highway Commission, 249 Iowa 994, 1004, 90 N.W.2d 161, 167.

The commission contends the Smith and Wilson precedents have no application here because plaintiffs never had a right of access to the new highway, they were not deprived of a right they never had and are entitled to no compensation therefor. The authorities amply support this contention. Plaintiffs' counsel conceded as much upon submission of the appeal to us. And their brief says, 'We do not claim a landowner has a right of access to a controlled-access highway * * *.'

We hold that establishment of a new controlled-access highway through land does not deprive the owner of a right of access to his property from the new highway and he is entitled to no compensation for the claimed taking of a right that never existed. Plaintiffs have the same access to their land from a highway they have always had except at the point where new U. S. 6 crosses the existing road. Plaintiffs are not deprived of an existing right of reasonable access to their land by the fact the new highway does not afford them additional means of access. The jury should have been instructed here in accordance with the thought embodied in defendant's requested instruction that plaintiffs were not deprived of a right of access to the new highway and were not entitled to be compensated for any claimed taking thereof.

We understand our section 306A.1, quoted above, to mean that the legislature has declared the establishment of controlled-access highways to be a necessary exercise of the police power. The general rule is that no compensation is due a citizen by reason of damage to property from the lawful exercise of the police power. Compensation must, however, be made for what is taken by eminent domain. City of Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 1107-1109, 184 N.W. 823, 188 N.W. 921, 23 A.L.R. 1322, 1331; State By and Through State Highway Commission v. Burk, 200 Or. 211, 265 P.2d 783; State v. Fox, Wash., 332 P.2d 943, 946; Carazalla v. State, 269 Wis. 593, 70 N.W.2d 208, 71 N.W.2d 276; 29 C.J.S. Eminent Domain § 6; 18 Am.Jur., Eminent Domain, section 11.

Insofar as chapter 306A provides there shall be no direct access to a new highway we think it is a proper exercise of the police power in order to meet the requirements of present day highway traffic. Burk and Carazalla cases, supra. Plaintiffs do not question the validity of chapter 306A but point out in argument that it specifically authorizes the acquisition of controlled-access highways.

A note in 43 Iowa Law Review 258, 267, says: 'The cases and writers on the subject have taken the position that if the highway is originally designated as a non-access facility this is a valid exercise by the state of its police power and no easement of access is ever created. Consequently, in eminent domain proceedings to determine the value of the property that is taken to establish a non-access highway, the court is justified in instructing the jury that such property never had a right of access so that the non-existence of such an easement is not to be considered as an element of damage.'

An annotation in 43 A.L.R.2d 1072, at 1079, states: 'It seems reasonably clear that where the landowner had no pre-existing right of access, * * * the mere fact that a limited-access highway is brought adjacent to his property * * * mill not be sufficient to create in him a right of access which the state must then condemn.'

Decisions that support the views we have expressed include Schnider v. State, 38 Cal.2d 439, 241 P.2d 1, 43 A.L.R.2d 1068; State ex rel. Rich v. Fonburg, 80 Idaho 269, 328 P.2d 60, 64; State ex rel. State Highway Commission v. Clevenger, 365 Mo. 970, 291 S.W.2d 57; State, By and Through State Highway Commission v. Burk, supra, 200 Or. 211, 265 P.2d 783; State v. Calkins, 50 Wash.2d 716, 314 P.2d 449; Carazalla v. State, supra, 269 Wis. 593, 70 N.W.2d 208, 71 N.W.2d 276. See also Smick v. Commonwealth, Ky., 268 S.W.2d 424.

It is of course true that where, as here, a new highway is put through land its controlled-access character is relevant on the issue of damages to the property resulting from the severance. If the highway is of the controlled-access kind the severance is more complete and the diminution in value of the land because of the increased inconvenience in going from one tract to the other is properly to be considered in making the award. Clevenger, Burk and Calkins cases, supra; Note 43 Iowa Law...

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