Mabe v. State ex rel. Rich

• Decision Date: 31 March 1961
• Docket Number: No. 8881,8881
• Citation: 83 Idaho 222,360 P.2d 799
• Parties: Orville O. MABE and Edna Mabe, husband and wife, Plaintiffs-Appellants, v. STATE of Idaho, on relation of Roscoe C. RICH, Leonard K. Floan, and Wallace C. Burns, the Board of Highway Directors, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 799

360 P.2d 799

83 Idaho 222

Orville O. MABE and Edna Mabe, husband and wife, Plaintiffs-Appellants, v. STATE of Idaho, on relation of Roscoe C. RICH, Leonard K. Floan, and Wallace C. Burns, the Board of Highway Directors, Defendant-Respondent.

No. 8881.

Supreme Court of Idaho.

March 31, 1961.

Clemons, Skiles & Green, Jeppesen & Jeppesen, Boise, for appellants.

Wm. R. Padgett, Legal Counsel, Board of Highway Directors, Boise, for respondents.

Frank L. Benson, Atty. Gen., appeared as attorney for State of Idaho, but did not participate in argument or brief.

McFADDEN, Justice.

Appellants by this action seek damages for impairment to and taking of highway access to their real property, being purchased under an agreement of sale. Respondents' motion for summary judgment was granted and judgment entered dismissing the action with prejudice.

Appellants assign as error the court's action in granting the motion and entering summary judgment; they claim that the amended complaint and affidavit of appellant Orville O. Mabe, set forth facts showing material interference with and damage to their right of access to U. S. Highway 30, with resulting depreciation to their property, as well as facts sufficient in law to entitle them to damages in some amount by way of inverse condemnation. As a corollary of the foregoing, they assert error of the trial court in denying them a jury trial on the issue of extent of the impairment of right of access and amount of damages.

The facts as alleged in the amended complaint show appellants to be husband and wife, and contract purchasers of the real property involved. Exhibit 'A', attached to the amended complaint, is a copy of their real estate contract. The real property (described in the amended complaint and contract), is shown on Exhibit 'B', attached to the amended complaint. This exhibit is a sketch of Interstate Project I-82-2(1) 83, Elmore County. Their property abuts on the highway that was formerly the main interstate highway designated as the U. S. Highway 30, 20 and 26, and was also the local thoroughfare between Boise and Mountain Home, Idaho. Situate on the premises is a service station and cafe, allegedly of the reasonable value of $50,000. Respondent under Idaho Highway Project I-3022(7), (or as appears on Exhibit 'B' as I-82-2(1) 83) constructed a new interstate highway approximately 2,000 feet northeast from the old highway. The new interstate highway uses the right-of-way of U. S. Highway 30 between Boise and Mountain Home, except for a distance of about 4.7 miles east of appellants' premises and for a distance of about 3.5 miles west thereof. (From Exhibit 'B', the highways mentioned are shown to actually extend northwesterly and southeasterly, and hence the terms 'east' and 'west' are relative only, but for clarity, the term 'west' is consideed an northwesterly and 'east' is considered as southeasterly).

The amended complaint states that 'said new construction has so impaired the access of the plaintiffs (appellants) and their business visitors to and from the existing U. S. Highway 30, 20 and 26, as to render his premises valueless as business property'; and further states that the new highway will be so constructed that no access onto the same will be permitted from their premises except by way of a dirt road to a point about 14 miles west of their premises, with only a probable access 4.7 miles to the east. However, Mr. Mabe's subsequent affidavit shows completion of the construction of the new highway and states that the new construction totally destroyed access to his property from the west by reason of respondent constructing a fence along the right-of-way of the new Interstate Highway 30, 20 and 26, about 2 miles west of his property, and also by respondent tearing up and obliterating the old highway a short distance west of their premises. This affidavit further states that persons coming from the west to get to appellants' premises must travel along the new highway about 5 miles beyond the premises and then come back the 5 miles along the old highway; that appellants have for many years enjoyed access to U. S. Highway 30, 20 and 26, and since construction of the new highway the access has been totally destroyed to the west and greatly impaired to the east rendering their business property valueless to their damage in the amount of $50,000.

For the purpose of this appeal, the allegations of fact contained in the amended complaint with exhibits, and the affidavit of Mr. Mabe summarized above must be accepted as true. Billeaudeau v. Temple Associates, 5 Cir., 213 F.2d 707, certiorari denied 348 U.S. 959, 75 S.Ct. 451, 99 L.Ed. 749; Apache Land and Cattle Co. v. Franklin Life Ins. Co., 9 Cir., 145 F.2d 964. Pogue v. Great Atlantic & Pacific Tea Co., 5 Cir., 242 F.2d 575; 3 Barron & Holtzoff, Federal Practice and Procedure § 1242, p. 198 (Wright Ed.).

It is the position of appellants that the destruction or impairment of the right of business access to their property constitutes a 'taking of property' whether accompanied by an actual taking of physical property or not, and that just compensation must be paid therefor. They further contend that the fencing and the obliteration of the old road to the west creates a 'cul-de-sac', and also constitutes a taking or impairment of the abutting right of access.

Respondent takes the position that access to appellants' property has not been impaired, and that the pleadings show nothing more than mere circuity of route. They urge that appellants are entitled only to a reasonable means of getting from their property to the existing highway system, quoting at length, Winn v. United States of America, 9 Cir., 272 F.2d 282, 287. Further contentions by respondent, that an abutting property owner has no vested right in the continued existence of a flow of traffic in front of his property, and that diversion of traffic is not a compensable item of damages, are not in issue here, since appellants have conceded this point and rely solely on their alleged right to compensation for impairment of access.

Winn v. United States of America, supra, involved real property adjoining that of the appellants here, who are, in fact, vendees from the appellants in that case. The U. S. Circuit Court of Appeals had before it an appeal from a judgment awarding damages for about 2.3 acres of land actually taken, the contention being that the damages were inadequate because the trial court failed to allow the jury to consider the new highway's effect on appellants' rock shop, and in failing to allow the jury to consider the damages suffered by appellants because of loss of access. The Circuit Court pointed out that there was no relationship between the highest and best use of the land actually taken to that of rock vending, and stated:

'There is nothing to show that the Interstate as such will contribute any 'direct and identifiable element of depreciation' to the residue of their property. Boyd v. United States, 8 Cir., 1955, 222 F.2d 493, 495. Whatever damage they may suffer results from neither the taking of the land nor the use to which it is to be put, but from the Interstate project as a whole, and the consequent diversion of traffic. Construction of a strip of a highway on the land taken here is not such a use as to cause injury to the remainder. Appellants' claim is essentially one for business loss and is not compensable. (citing cases).

'Lastly, appellants phrase their claim in terms of 'loss of access,' citing Hughes v. State, 80 Idaho 286, 328 P.2d 397; State ex rel. Rich v. Dunlick, (sic) Inc., 77 Idaho 45, 286 P.2d 1112. An examination of these cases show that in each an existing access to an existing road was damaged or destroyed by the new construction. Such is not the case in the instant action. The appellants will have the same access may be reached the same as they are is constructed as they had before.

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'Although Highway 30 will be obliterated some distance from appellants' land toward Boise, it will remain unchanged toward Mountain Home, and the 'village market, church, and school' (United States v. Grizzard, supra [219 U.S. 180, 31 S.Ct. 162, 55 L.Ed. 165]) may be reached the same as they are reached now. It is true that appellants will have to travel ten miles...