Smith v. State Highway Commission

Decision Date07 November 1959
Docket NumberNo. 41440,41440
PartiesAmos SMITH and Viola Smith, his wife, Appellees, v. STATE HIGHWAY COMMISSION of Kansas, Appellant.
CourtKansas Supreme Court

Syllabus by the Court.

1. The right of access to and from an existing public street or highway is one of the incidents of ownership of the land abutting thereon, and is sometimes called a common law right of access. It is a property right which may not be taken from the owner by the public without his consent, except upon payment of full compensation and by due process of law.

2. While the entire access of an abutting property owner on an existing street or highway may not be cut off, generally an owner is not entitled, as against the public, to access to his land at all points in the boundary between it and the highway. Thus, the exercise of the rights of an abutting property owner is subject to reasonable regulation and restriction for the purpose of providing reasonably safe passage for the public, but regulations or limitations cannot be sustained which unduly or unreasonably curtail or restrict the rights of the abutting owner.

3. Subject to constitutional limitations, the state has absolute control over the streets and highways within its boundaries. Such power of supervision and control may be exercised directly by the legislature, or it may be delegated to a subordinate governmental agency.

4. The controlled access facilities statute (G.S.1957 Supp. 68-1901 to 1906, incl.), enacted by the state legislature in 1953, authorizes the establishment and acquisition of controlled access facilities by highway authorities in the state of Kansas. By the provisions of G.S.1957 Supp. 68-1903, the legislature has prescribed the exclusive methods by which private or public property, including rights of access, may be acquired for the establishment of controlled access facilities--that is, 'by gift, devise, purchase or condemnation, in the same manner as now or hereafter authorized by law for acquiring property or property rights.' It was the intention of the legislature that a landowner deprived of abutter's rights of access be fully compensated for them.

5. Where the State Highway Commission acquires the rights of access of an abutting property owner on an existing street or highway, pursuant to the provisions of G.S.1957 Supp. 68-1903, it is empowered to regulate, restrict or prohibit access to the street or highway, or portion thereof along which access rights have been acquired, as a controlled access facility pursuant to the provisions of G.S.1957 Supp. 68-1902.

6. The measure of damages in an eminent domain proceeding for the acquisition of rights of access of an abutting property owner on an existing street or highway is determined by considering the market value of the property before the access right is taken and after it is taken. The difference in value is the damage for the loss of access rights.

7. In an eminent domain proceeding where the State Highway Commission condemned the rights of access of an abutting property owner on an existing highway, excepting and reserving to the owner an existing entrance of 40 feet in width, thereby leaving the property owner with the same entrance he had prior to the condemnation, it is held: (a) The State Highway Commission is obligated to pay just compensation for the taking of the abutters' rights of access; (b) the trial court did not err in the instructions given to the jury, or in denying requested instructions of the State Highway Commission based on the theory the abutting property owners' rights of access were merely regulated and restricted pursuant to regulations promulgated by the Commission; and (c) the verdict of the jury in the amount of $5,000 for abutters' rights of access is not excessive, commercial value having been established for the fronting property prior to the condemnation.

Charles J. Carroll, Topeka, W. B. Kirkpatrick, Asst. Atty. Gen., Jerry Ann Foster, Topeka, and Robert E. Ferguson, Marysville, on the brief, for appellant.

Harry A. Lanning, Seneca, William M. Drumm, Seneca, on the brief, for appellees.

SCHROEDER, Justice.

This appeal arises from a proceeding in eminent domain by the State Highway Commission to (1) acquire an easement for a channel change and borrow, and simultaneously to (2) acquire rights of access along a limited portion of the landowners' frontage on an existing highway. The parties stipulated the amount of the appraisers' award for the easement was just compensation thereby leaving as the single issue in the trial court the restriction of access.

It is uncontroverted that the landowners had the same number of entrances to their premises after the condemnation of abutters' rights of access as they had prior to the condemnation.

The primary question is whether the State Highway Commission under the circumstances presented by the facts in this case may acquire abutters' rights of access to an existing highway by the exercise of state police power, or whether the State Highway Commission is obligated to acquire such rights of access by the exercise of its power of eminent domain pursuant to G.S.1957 Supp. 68- 1903, and pay just compensation to the landowners for the taking.

To avoid any misinterpretation of the force and effect to be given the decision herein, a complete report of the factual situation presented by this appeal is deemed necessary.

Pursuant to a plan for the relocation and improvement of U. S. Highway No. 36 in Nemaha County, Kansas, the State Highway Commission (appellant) filed condemnation proceedings in the district court of said county on February 6, 1958. The landowners, Amos and Viola Smith (appellees) own land which fronts U. S. Highway No. 36 just west of the city limits of Seneca, Kansas, and from which a .26-acre easement and abutters' rights of access were acquired by the State Highway Commission.

The petition filed in the condemnation proceedings recites in part:

'2. That petitioner states that under and by virtue of Section 68-413, G.S.1955 Supp. it has the right of eminent domain and is authorized to acquire right of way in compliance with G.S.1949, 26-101, in the name of the State of Kansas for establishing, laying out, opening, constructing, maintaining, improving and draining the State Highway System.

'3. That under and by virtue of Section 68-1901 through Section 68-1906, G.S.1955 Supp., the State Highway Commission has authority to establish controlled access facilities and to construct and maintain frontage roads and to acquire private and public property, including the right of access for such controlled access facilities and frontage roads by condemnation proceedings.

'4. That on the 28th day of August, 1957, the State Highway Commission in regular session found and determined that traffic conditions both present and future in Nemaha County, Kansas, justified and required the establishment of controlled access facilities, and that it was therefore necessary to acquire the land hereinafter described as a controlled access facility, and to acquire certain lots and parcels of land described herein for right of way and ordered that said lots and parcels of land be acquired by the State Highway Commission in the name of the State of Kansas by exercise of the right of eminent domain as provided by Section 68-413, G.S.1955 Supp.

'5. That pursuant to said order the State Highway Commission desires to acquire in the name of the State of Kansas certain lots and parcels of land situated in Nemaha County for highway purposes and a controlled access facility with frontage roads and to design, establish, regulate, improve, construct and maintain a controlled access facility; with said tracts being shown of record to be owned and subject to liens as hereinafter set out.

'6. Petitioner further alleges it hereby desires to purchase or acquire by its condemnation proceeding the right of way hereinafter described and all of the rights to control the ingress and egress in and to all such tracts designated.' (Emphasis added.)

The property taken from the landowners by the petition was described in Tract 29(a) and in Tract 29(b). The sketch set forth showing a portion of the quarter section of the landowners' property involved will serve to clarify the facts. Tract 29(a) is a .26-acre easement for channel change and borrow and is indicated by diagonal hatch marks on the sketch. Tract 29(b) was described as:

'Any abutter's rights of access to the highway over and across a line described as follows: Beginning at a point on the West line 30.0 feet North of the Southwest corner of the Southeast Quarter of Section 28, Township 2 South, Range 12 East; First Course, Thence East Parallel to the South Line of Said Quarter Section 1410 Feet. Except and reserving, however, unto owners of abutting land, their successors or assigns, the right of access to the highway for the purpose of an Entrance over and across the following described course: * * *'

The exception is a 40-foot existing entrance from the highway shown on the sketch as the Fort Markley entrance. This 1,410 feet, shown by the bracket on the sketch, is a portion of the north boundary line along the existing right of way of the State Highway Commission.

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

At this point it should be stated, referring to the sketch, the south frontage of the quarter section in controversy along existing U. S. Highway No. 36 is 2,633 feet. The east portion of the existing highway, consisting of 1,165 feet, will serve as a frontage road along a portion of the landowners' property from which no rights of access were taken. The proposed relocation of the highway will be parallel with and approximately 75 feet south of the existing highway. The abutters' rights of access, with the exception of one 40-foot existing entrance, were taken from the west portion of the landowners' property to the extent of 1,410...

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