Shaklee v. Board of County Com'rs of Weld County, 23327

Decision Date27 December 1971
Docket NumberNo. 23327,23327
Citation491 P.2d 1366,176 Colo. 559
PartiesOrville B. SHAKLEE, Plaintiff in Error, v. BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, and Department of Highways,State of Colorado, Defendants in Error.
CourtColorado Supreme Court

Fuller & Evans, John M. Evans, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Joseph M. Montano, Chief Hwy. Counsel, Asst. Atty. Gen., Richard W. Phillips, Deputy Chief Hwy. Counsel, Asst. Atty. Gen., George D. Dikeou, Asst. Atty. Gem., Denver, for defendants in error.

ERICKSON, Justice.

This writ of error arises out of a condemnation proceeding which was commenced on April 21, 1965, to acquire Orville B. Shaklee's access rights to State Highway No. 16. To simplify reference to the parties, we will refer to the Board of County Commissioners of Weld County and the Department of Highways of the State of Colorado, who are the condemnors, as the 'petitioners.' Orville B. Shaklee will be referred to as the 'landowner.'

The petitioners sought to condemn all of the landowner's access rights to State Highway No. 16 to permit the construction of the Greeley Bypass, which was to be a limited access freeway. Denial of access to the state highway was asserted to be in the interest of public safety and in an effort to provide an interstate freeway for the traveling public.

At the time the condemnation proceeding was instituted, the entire north boundary of the landowner's property abutted State Highway No. 16 for a distance of 1,014 feet. The property was used for farming, but expert testimony established that the property was zoned for estates and that the highest and best use of the property was for residential purposes. At all pertinent times, the landowner obtained access to State Highway No. 16 by use of a driveway which was located at the northwest corner of the property. Although it was possible to cross onto the highway at any point along the north boundary of the property, the landowner had not established or sought to put into use any other access point to his property or the improvements thereon.

While the condemnation action was pending in the district court, the petitioners concluded that a total denial of access was unnecessary. Accordingly, on May 10, 1965, the petitioners orally moved to amend the original petition so as to grant the landowner limited rights of access to the freeway. The court granted the petitioners' motion and allowed the condemnation petition to be amended to permit the landowner to have two fixed points of access to State Highway No. 16. Thereafter, on April 27, 1967, immediately prior to the commencement of the trial, the parties orally agreed to a second amendment to the condemnation petition. The second amendment granted the landowner two access points of his choosing on the north boundary of his property, provided that said points of access or ingress and egress remained at least 600 feet apart. Under the stipulation, the openings were to be 35 feet in width, so long as the property was used for farming purposes, and would increase crease to the width of the dedicated streets at the two points of entry when the property was devoted to subdivision use.

After the second amendment was permitted by the court, the petitioners moved for a ruling by the court that the limitations imposed on the landowner's right of access to his property were not compensable. The petitioners' argument was premised on the theory that the limitation of access in the second amended condemnation petition was reasonable and constituted a proper exercise of the police power. The trial judge denied the motion and ruled that a property right was affected and that the right was compensable. Trial was then undertaken to a commission to ascertain the measure of damages. No damages were awarded, and the landowner brought this appeal. The appeal is predicated on the ground that there was a taking of property rights which entitled the landowner to compensation. The petitioners, by way of cross-error, contend that the amended petition did not constitute a taking and that the limitation of access was not compensable.

The record before us causes us to conclude that after the second amendment was made to the condemnation petition, there was no taking of property in this case which could be the subject of compensation. The limitation of access which occurred herein was permissible under the police power and did not constitute a taking of property that would require compensation under the Fifth Amendment to the United States Constitution or Article II, Section 15 of the Constitution of Colorado.

The landowner would have us declare that he had access to State Highway No. 16 at every point on his north boundary and that any limitation of access requires compensation. The contention of the landowner is not supported by the great weight of authority. While access to a highway may not be unreasonably cut off without payment of compensation, an owner is not entitled, as against the public, to access to his land at every point on the property line adjacent to the highway. State, ex rel. Department of Highways v. Linnecke, 468 P.2d 8 (Nev.1970); State, State Highway Comm'r v. Kendall, 107 N.J.Super. 248, 258 A.2d 33 (1969); State Highway Comm'n v. Yarborough, 6 N.C.App. 294, 170 S.E.2d 159 (1969); People ex rel. Dept. of Public Works v. Murray, 172 Cal.App.2d 219, 342 P.2d 485 (1959); Iowa State Highway Comm'n v. Smith, 248 Iowa 869, 82 N.W.2d 755 (1957). If the landowner has free and convenient access to his property and the improvements on it and...

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11 cases
  • La Plata Elec. Ass'n, Inc. v. Cummins, 85SC82
    • United States
    • Colorado Supreme Court
    • November 10, 1986
    ... ... Clyde Demel, as Public Trustee of La Plata County, Colorado, ... Respondents ... No. 85SC82 ...        The district court appointed a board of three commissioners to determine the amount ... E.g., Shaklee v. Board of County Commissioners, 176 Colo. 559, ... ...
  • Narciso v. State, 1922-A
    • United States
    • Rhode Island Supreme Court
    • November 22, 1974
    ... ... McRea v. Marion County, 222 Ala. 511, 133 So. 278 (1931); State ex rel ... Shaklee v. Board of County Comm'rs, Colo., 491 P.2d 1366 ... ...
  • State Dept. of Highways, Division of Highways v. Davis
    • United States
    • Colorado Supreme Court
    • April 6, 1981
    ... ... Public Trustee of Prowers ... County, Respondents ... No. 79SC147 ... Supreme Court ... See, e. g., Shaklee v. County Comm., 176 Colo. 559, 491 P.2d 1366 ... ...
  • State Dept. of Highways, Div. of Highways, State of Colo. v. Interstate-Denver West, INTERSTATE-DENVER
    • United States
    • Colorado Supreme Court
    • May 21, 1990
    ... ... West's 38.32 acre tract in Jefferson County, ... near the City of Golden, for the ...         Shaklee v. Board of County Comm'rs, 176 Colo. 559, 564, ... ...
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6 books & journal articles
  • Chapter 10 - § 10.1 • EASEMENTS
    • United States
    • Colorado Bar Association Colorado Real Property Law (CBA) Chapter 10 Easements, Profits, Licenses, and Franchises
    • Invalid date
    ...of public mall).[78] Gayton v. Dep't of Highways, 367 P.2d 899 (Colo. 1962); Shaklee v. Bd. of County Comm'rs of Weld County, 491 P.2d 1366 (Colo. 1971); State Dep't of Highways v. Davis, 626 P.2d 661 (Colo. 1981).[79] Gayton v. Dep't of Highways, 367 P.2d 899 (Colo. 1962); Radinsky v. Denv......
  • Chapter 35 - § 35.2 • EMINENT DOMAIN UNDER STATE LAW
    • United States
    • Colorado Bar Association Colorado Real Property Law (CBA) Chapter 35 Eminent Domain
    • Invalid date
    ...a "taking"). [100] State Dep't of Highways v. Davis, 626 P.2d 661 (Colo. 1981).[101] Id. at 665.[102] Shaklee v. Bd. of County Comm'rs, 491 P.2d 1366 (Colo. 1971); Dep't of Highways v. Interstate-Denver West, 791 P.2d 1119 (Colo. 1990).[103] Hayes v. City of Loveland, 651 P.2d 466 (Colo. Ap......
  • Chapter 11 - § 11.9 • ACCESS DAMAGE CLAIMS
    • United States
    • Colorado Bar Association Colorado Eminent Domain Practice (CBA) Chapter 11 Damage Rules and Methodologies
    • Invalid date
    ...476 P.2d 745 (Colo. 1970); and Boxberger v. State Highway Commission, 251 P.2d 920 (Colo. 1953).[43] Shaklee v. Bd. of County Comm'rs, 491 P.2d 1366 (Colo. 1971); Gayton v. Dep't of Highways, 367 P.2d 899 (Colo. 1962).[44] Radinsky v. City & County of Denver, 410 P.2d 644 (Colo. 1966); Troi......
  • The Colorado Supreme Court Redefines Compensable Damages in Condemnation Actions
    • United States
    • Colorado Bar Association Colorado Lawyer No. 16-10, October 1987
    • Invalid date
    ...Herring v. Platte River Power Auth., 728 P.2d 709 (1986). 3. 7 Colo. 113, 2 P. 6 (1883). 4. See, e.g., Shaklee v. Bd. of County Comm'rs, 176 Colo. 559, 491 P.2d 1366 (1971); Troiano v. Colorado Dep't of Highways, 170 Colo. 484, 463 P.2d 448 (1969); Roth v. Wilkie, 143 Colo. 519, 354 P.2d 51......
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