Riddle v. State Highway Commission

Decision Date16 May 1959
Docket NumberNo. 41235,41235
Citation339 P.2d 301,184 Kan. 603
PartiesFrancis M. RIDDLE and Lucile G. Riddle, His Wife, d/b/a Topeka Motel, Appellees, v. STATE HIGHWAY COMMISSION of Kansas, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. A right of access in and to a street or highway (conventional or land service) attaches to abutting land, which is a property right and cannot be taken for public use without just compensation. Such right of access is justified upon the grounds of necessity and is such as is reasonably necessary for the enjoyment of the land for all purposes to which it is adapted, subject, however, to reasonable regulations of the State Highway Commission with respect to entrances.

2. The legislature has plenary power over highways and their use may be limited, controlled and regulated in the exercise of the police power whenever necessary to promote the safety and general welfare of the people.

3. The designation by the State Highway Commission of a newly established highway as a controlled access facility pursuant to G.S.1957 Supp. 68-1901, et seq., is an exercise of the police power.

4. Where a new controlled access highway is established by the State Highway Commission pursuant to G.S.1957 Supp. 68-1901, et seq., through property where no highway previously existed, there is no 'taking' of a right of access since such a right of access never in fact existed.

5. Where a highway such as described in paragraph 4 of the syllabus is established and the right of access is restricted by the State Highway Commission through the exercise of police power, the abutting owner is not entitled to compensation for the restriction of that right. To constitute a 'taking' of property so as to be compensable under eminent domain, a private right must be impaired or destroyed.

6. In proving damage in an eminent domain proceeding to determine diminution in market value of the land remaining based upon a consideration of all of the capabilities of the property for its best and most advantageous uses as it was actually situated at the time of the taking, it was not error for the trial court to refuse to strike testimony of plaintiffs' expert witnesses based upon denied of right of access to the new highway, business loss or loss of profits, and the diversion of traffic from the old highway to the new, for the reason that the market value of the land remaining may be affected by the nature and extent of the taking, which may affect the reasonably probable uses to which the remaining land may be put, and those factors were proper elements for the jury's consideration in determining damages, if any, to the land remaining.

7. The record in a condemnation proceeding examined, considered and held: The trial court did not err (1) in giving instruction No. 10; (2) in refusing to give instructions requested by the State Highway Commission, and (3) in overruling the motion for a new trial, all as more fully set forth in the opinion.

Charles J. Carroll, Asst. Atty., State Highway Commission, Great Bend, argued the cause, and William B. Kirkpatrick, Asst. Atty. Gen., and Michael A. Barbara, Topeka, were with him on the briefs, for appellant.

Charles Rooney, Sr., Topeka, argued the cause, and Charles Rooney, Jr., and James L. Galle, Topeka, were with him on the briefs, for appellees.

FATZER, Justice.

This was an eminent domain proceeding commenced by the State Highway Commission (commission) to acquire a right of way for the relocation of U. S. Highway 24 as a controlled access highway through Calhoun Bluffs northeast of Topeka. The landowners, Francis M. and Lucile G. Riddle (plaintiffs) appealed to the district court from the award of the appraisers. The commission did not appeal. Following a trial by a jury on March 5 and 6, 1958, the plaintiffs were awarded damages in the amount of $23,887. The commission has appealed from that judgment and the order overruling its motion for a new trial. Specifications of error are hereafter noted.

Plaintiffs were the owners of a rectangular tract of land containing 6.82 acres upon which was located their home and a six-unit motel which they had profitably operated for a number of years. The south side of their premises abutted old U. S. Highway 24, a transcontainental highway carrying a great amount of through traffic, to which the plaintiffs and patrons of their motel had direct access at several points. The north or rear portion of the property was not used in connection with the motel, but was wooded, making a scenic site for the motel and plaintiffs' residence. For purpose of clarity the area involved is shown by the following map.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On May 21, 1957, the commission filed its petition for the condemnation of several lots and parcels of land, including 4.32 acres off the back or north portion of the plaintiffs' property for the construction of the new highway. Although their remaining property abuts upon the new highway, due to its controlled access feature, the plaintiffs have no right of access. When completed, the new highway will be on a high graded elevation and users will be able to see only the roof of the motel for a short distance, and, if they become aware of its location, may reach it only by leaving the new highway at a diamond shaped interchange 600 feet east of the property, or at a crossover one and one-half miles west--where, from either point, the motel is not visible.

The home and motel are located on the remaining 2.5 acres of land; no severance was occasioned by the condemnation, and neither was disturbed. The old highway will not be physically changed but will remain open to public travel and plaintiffs will continue to have the same access to it as prior to the condemnation; the metel will face the same highway it always did and its patrons will have the same approach they always had, however, the major portion of the traffic, instead of passing in front of the motel, will travel upon the new highway at the rear. Thus, for all practical purposes, due to the diversion of traffic occasioned by the establishment of the new highway and denial of direct access thereto, the use of the property as a motel will be greatly curtailed.

On the same day the petition was filed, the court determined it was sufficient; that the commission had the power of eminent domain, and that the lands were necessary for state highway purposes. Accordingly, appraisers were duly appointed to assess damages. On June 12, 1957, the appraisers filed their report of appraisement with the clerk of the district court, and made a total award to plaintiffs in the amount of $16,629.

At the commencement of the trial it was stipulated by the parties that the value of fence and a chicken house located upon the land taken (indicated on the map as 'sheds') was $360, which is not here in issue. Mr. Riddle testified on direct examination that the market value of the land when taken was $4,000 and that the difference in value of the remaining land before and after the taking was $20,500, based upon denial of access to the new highway. In addition, Clark J. Harvey and Glenn Davis, two real estate dealers, and Bob Brock, a contractor engaged in the business of building motels, gave expert testimony on behalf of the plaintiffs. Harvey testified that he was familiar with the plaintiffs' property and that they had been engaged in the motel business more than eight years; that he was familiar with the new highway and the land taken; that the entire 6.82 acres were worth $45,820; that the 4.32 acres were worth $4,320; that the remainder before the taking was worth $42,500 and after the taking it was worth $17,500; that all damage to the remainder was $25,000; that the factors he took into consideration in arriving at those values were the denial of access to the new highway; great loss of income profits; noise; unsightliness of the grade; inconvenience and circuity of travel occasioned by the deprivation of access; replacement costs of buying ground and building the same type of building on another transcontinental highway, and the value of the house without access to the new highway. Upon redirect examination he further testified that the damage of $25,000 to the remainder was practically all due to lack of access to the new highway and that such lack of access constituted 95 percent of the remainder damages. The commission moved to strike all of Harvey's testimony as incompetent for the reason it was based upon three elements of damage, i. e., (1) deprivation of access to the new highway; (2) loss of business or profits, and (3) inconvenience or circuity of travel in reaching the new highway, upon the ground that such elements were not proper elements of damage and not compensable in a condemnation proceeding. The motion was overruled.

Davis and Brock testified upon direct examination that the fair market value of the land when taken was from $4,300 to $4,320, and the difference in value of the remaining land before and after the taking was from $26,112 to $26,500. Each testified he took into consideration the same factors Harvey previously testified to in arriving at the fair market value of the land remaining. Upon cross-examination each testified that because of those factors the commercial value of the land remaining had been rendered 'almost completely worthless'; they made the damage 'total,' and rendered the property not 'worth anything as a motel.' One testified that 'decreasing the size of the tract' was 'a very minor' damage. However, all of plaintiffs' expert witnesses testified that the home was damaged substantially by the taking of the entire back yard. Upon the conclusion of plaintiffs' case, the commission renewed its motion to strike the testimony of all of plaintiffs' expert witnesses for the reasons previously stated, which likewise was overruled.

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