Ray v. State Highway Commission
| Decision Date | 22 January 1966 |
| Docket Number | No. 44137,44137 |
| Citation | 410 P.2d 278,196 Kan. 13 |
| Parties | R. E. RAY and Sadie Ray, his wife, Appellants, v. STATE HIGHWAY COMMISSION of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The right of access of an abutting property owner upon a public street or 2. Where a frontage road, which is a part of the highway system, provides owners of abutting land with access to the westbound through traffic lanes at points of connection, only 1,067.44 feet apart, one being 155.56 feet east of the east boundary and the other being 714 feet west of the west boundary of the appellants' property, it is held: The abutting property owners have reasonable access from their property to the controlled access highway, and their rights of access have not been taken or appropriated by the State Highway Commission, but merely subjected to regulation under the police power of the state, and their damages, if any, are non-compensable.
highway is merely a right to reasonable, but not unlimited, access to and from the abutting property. As applied to controlled access facilities, where a frontage road is provided, to which the abutting owners of property have direct access, and they have reasonable access from the abutting property via the frontage road to the throughtraffic lanes of the controlled access highway, the abutters' rights of access have not been taken or appropriated by the State Highway Commission, but merely subjected to regulation under the police power of the state, and their damages, if any, are noncompensable.
Charles W. Harris, Wichita, argued the cause, and Lawrence Weigand, Lawrence E. Curfman, Byron Brainerd, Orval J. Kaufman, J. Ruse McCarthy, Donald A. Bell, J. L. Weigand, Jr., Spencer L. Depew, Paul M. Buchanan and Charles R. Moberly, Wichita, were with him on the brief, for appellants.
Charles N. Henson, Asst. Atty. Gen., argued the cause, and David H. Fisher, Donald Patterson, C. K. Sayler, Jack L. Summers and Edwin D. Smith, Topeka, were with him on the brief, for appellee.
This is an action by landowners to recover damages on an implied contract for the value of property rights alleged to have been appropriated by the State Highway Commission without condemnation and without the payment of just compensation. The landowners allege the State Highway Commission has unlawfully taken their right of direct access to U. S. Highway No. 54. Upon the pleadings and admissions of the parties the trial court entered summary judgment for the State Highway Commission on the ground there was no compensable taking of the landowners' right of access. The landowners have duly perfected an appeal.
The only question is whether under the facts of this case there was a compensable taking of the landowners' rights of access to U. S. Highway No. 54.
It is the position of the State Highway Commission (hereafter referred to as the Commission) that upon the pleadings and admitted facts (secured by the Commission pursuant to K.S.A. 60-236) concerning which there is no dispute, the trial court properly sustained the motion for summary judgment as a matter of law.
The facts upon which the issue herein is to be determined are as follows:
The appellants, husband and wife, now own and at all times material to this action have owned real property on the north side of U. S. Highway No. 54 west of the city of Wichita, but in the urban area. The land was platted but is undeveloped commercial property. In the year 1952 the Commission condemned in the name of the State of Kansas an easement for a highway right of way over a portion of the appellants' property, the description of which has been admitted. (Abutters' rights of access were not condemned.)
In 1953 the Commission constructed a divided concrete four-lane highway, with separated eastbound and westbound traffic lanes, which was designated as U. S. Highway No. 54, a part of the state highway system. This highway abutted the entire south boundary of the appellants' land, and was constructed wholly within the easement previously condemned.
In the year 1959 the Commission constructed as a part of U. S. Highway No. 54, and the state highway system, a frontage road at a location north of the westbound traffic lanes of U. S. Highway No. 54 adjacent to the appellants' property.
No portion of the aforesaid frontage road was situated on the appellants' property. It was located entirely within the easement condemned for highway purposes in 1952.
At all times since the construction of the aforesaid frontage road, the appellants have had and now have access to the frontage road, at all points where the north edge of this frontage road is adjacent to the appellants' property.
At all times material herein and subsequent to the construction of the frontage road, the appellants have had and now have access to the westbound traffic lanes only at points of connection between the frontage road and the westbound traffic lanes constructed in 1953.
It is undisputed the points of connection between the frontage road serving the appellants' property and the westbound traffic lanes are 1,067.44 feet apart. One is located 155.56 feet east of the east boundary of the appellants' property, and the other is located 714 feet west of the west boundary of the appellants' property. The appellants' property fronts the highway in question for a distance of 197.88 feet.
The Commission constructed the aforesaid frontage road for the purpose of making U. S. Highway No. 54 safer, less dangerous and for the welfare of the people, following a study and recommendation by its safety department.
As heretofore stated, the simple issue to be determined is whether upon the foregoing facts there was a compensable 'taking' of this appellants' rights of access to the public highway. This is a question of law to be determined by the court in the first instance. (Brock v. State Highway Commission, 195 Kan. 361, 404 P.2d 934.)
The Commission contends that such action is a reasonable exercise of the police power in regulating traffic flow upon the main traveled portion of the highway.
It has been held if the State Highway Commission 'takes' property for its lawful purposes without resort to condemnation or other proceeding, and a person deprived of property rights is not compensated, the injured party may bring an action against the Commission for full compensation in the form of an action on implied contract. (State Highway Comm. v. Puskarich, 148 Kan. 388, 83 P.2d 132; Atchison v. Kansas State Highway Comm., 161 Kan. 661, 171 P.2d 287; and Dugger v. State Highway Commission, 185 Kan. 317, 342 P.2d 186.)
It has also been held that access to and from an existing public highway is one of the incidents of ownership of land abutting thereon, sometimes called a common law right of access, which may not be taken from the owner by the public without just compensation, when the landowner has been deprived of a legally protected right of access. Where the Commission exercises its power to take a legally protected right of access by condemnation or otherwise, the affected landowner has a right to compensation for the value of the property right taken. While the Commission concedes the foregoing lae, it contends the cases so holding do not decide this case.
It is argued the power to regulate within the police power of the state gives the Commission the power to act in the public interest without incurring liability for compensation, even though property rights of citizens may be affected or even destroyed. (Citing, Smith v. State Highway Commission, 185 Kan. 445, 346 P.2d 259, and cases cited therein.)
It must be recognized that these two types of power which the Commission exercises are mutually exclusive polestars with different legal consequences. The use of one incurs liability for compensation, but the other does not. An act by the Commission must be classified as an exercise of In the instant case the acts of the Commission, as revealed by the uncontroverted facts in the record, must therefore be held to be within the orbit of the power of eminent domain, or within the orbit of the police power to protect and safeguard the public welfare by regulating traffic on the highways. That is the issue presented by this appeal.
one type of power or the other. It cannot be both.
A similar question was brought into focus in Smith v. State Highway Commission, supra, as follows:
'Subject to constitutional limitations, the state has absolute control over the streets and highways within its borders. State v. Atkin, 64 Kan. 174, 67 P. 519, 97, Am.St.Rep. 343, affirmed Atkin v. Kansas, 191 U.S. 207, 24 S.Ct. 124, 48 L.Ed. 148. Such power of supervision and control may be exercised directly by the legislature, or it may be delegated to a subordinate governmental agency.
'The basic problem in every case involving impairment of the right of access is to reconcile the conflicting interests--i. e., private v. public rights. The police power is the power of government to act in furtherance of the public good, either through legislation or by the exercise of any other legitimate means, in the promotion of the public health, safety, morals and general welfare, without incurring liability for the resulting injury to private individuals. Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; and Schaake v. Dolley, 85 Kan. 598, 118 P. 80, 37 L.R.A., N.S., 877. Eminent domain, on the other hand, is the power of the sovereign to take or damage private property for a public purpose on payment of just compensation. Highbarger v. Milford, supra [71 Kan. 331, 80 Pac. 633]; and Simmons v. State Highway Commission, supra [178 Kan. 26, 283 P.2d 392].
'since there is no doubt that the right of access, like any other property can be taken for public purpose under eminent domain upon payment of just compensation, the interesting question is how far the public can...
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