Snyder v. State

Decision Date25 March 1968
Docket NumberNo. 10103,10103
Citation438 P.2d 920,92 Idaho 175
PartiesLeo B. SNYDER, d/b/a Blue Cross Animal Hospital, Plaintiff-Respondent, v. STATE of Idaho and City of Boise, Defendants-Appellants.
CourtIdaho Supreme Court

Faber F. Tway, Chief Legal Counsel, and Anton Hohler, Asst. Legal Counsel, Idaho Dept. of Highways, Boise, for appellant, State.

Elbert E. Gass, Boise, for appellant, City of Boise.

William A. Stellmon, Lewiston, for City of Lewiston, amicus curiae.

Manweiler & Webb, Boise, for Ass'n of Idaho Cities, amicus curiae.

Robert W. Peterson, Moscow, for City of Moscow, amicus curiae.

Davison, Davison & Copple, Boise, for respondent.

SPEAR, Justice.

By this action plaintiff (respondent herein) seeks to recover damages on the theory of inverse condemnation alleging that defendants (appellants) have materially interfered with the right of access to his animal hospital. Appellants contend this is not the case and that respondent's damage, if any, is not compensable because it results from a lawful exercise of their police powers and does not involve loss of 'access.'

Respondent alleges that he is the owner of certain improved realty located at 2212 Main Street, Boise, Idaho, in which he operated a small animal veterinary hospital known as the Blue Cross Animal Hospital. For many years, access to said hospital (ingress and egress) for respondent and his customers was maintained by means of a curb cut in front of the building directly adjacent to Main Street whereby perpendicular parking was permitted. The complaint thereafter states:

'III

'The defendants have destroyed plaintiff's curb cut, installed curbing preventing use of the parking strip for perpendicular parking, and have forbidden any parking on Main Street at the address involved, parallel or otherwise.

'IV

'By reason of the defendants action, access to plaintiff's property by plaintiff and his customers has been materially damaged and impaired, requiring plaintiff (to) acquire additional land for parking and access to said hospital at his own expense.'

The undisputed facts reveal that respondent is the owner of a certain tract of real property improved by a building used as an animal hospital. This building comes to within 5.50 feet of respondent's south property line adjacent to Main Street which is also the north right of way line of Main Street and the building extends to within 4.10 feet of the respondent's west property line. The easterly wall of the building was located on the easterly property line. In other words, the hospital practically covered the entire frontage of respondent's property.

Easy access to the building was originally provided by means of a curb cut extending across the entire length of respondent's 50-foot frontage, whereby customers would pull in and park their cars either perpendicularly or diagonally. Cars so parked would normally project out into Main Street or upon the sidewalk. At that time, parallel parking was also permitted along Main Street. Respondent testified that this access was essential to his customers in order that they might transfer and carry their animals from car to hospital without undue inconvenience. Otherwise, it would be necessary for them to park their cars along the nearest north-south streets, i. e., 22nd or 23rd between Main and Idaho, as respondent's property could not accommodate off-street parking, i. e., vehicular access. This would, in his opinion, have ruined his business as a veterinary hospital.

It is undisputed that this curb cut lies entirely on public property, i. e., one of the streets in the City of Boise. The curb cut was maintained pursuant to a revocable permit regularly issued by the City of Boise to respondent's predecessor in title sometime prior to 1941. At that time Main Street dead-ended at the Boise River about one mile west of respondent's property and vehicular traffic was relatively light.

On July 20, 1964, the State of Idaho, by and through the Board of Highway Directors and the City of Boise, entered into a cooperative agreement for the construction of Federal Aid Project U-3021(21) and (22) which, among other things, provided for the inclusion of Main Street in front of respondent's hospital within the state highway system, thereby transforming the thoroughfare into a major arterial highway. As a part of this agreement, parallel and angle parking were eliminated on Main Street east of 23rd Street. This was done in order to accommodate the increased flow of traffic and reduce the possible hazards occasioned by such parking.

Thereafter, it was necessary for a customer, in order to gain access to the hospital, to park either on 22nd or 23rd Street between Main and Idaho although I.C. § 49-521(d) would permit parking 'temporarily for the purpose of and while actually engaged in loading or unloading.' In order to alleviate this situation, respondent purchased twenty-five feet of property adjoining on the east side of his hospital and made it suitable for off-street parking and access. The City granted respondent vehicular access to this new property by providing, at no cost to respondent, a concrete driveway and a curb cut.

Respondent's expert witness, a real estate appraiser in Boise, testified that the highest and best use of this property, prior to the change in parking regulations, was as an animal hospital, but that afterwards this use would be terminated. He estimated respondent's damages (decrease in market value) to be $8,000, as a result of the loss of parking along Main Street.

The trial court found that by reason of appellants' actions (regulations), 'access to plaintiff's property by plaintiff and his customers has been materially damaged and impaired,' and rendered judgment against them for the sum of $8,000 and costs.

Considering that the curb cut and parking strip formerly used by respondent's business customers were on public property, it is clear that there has been no taking of real property in the physical sense. While it appears that this curb cut was granted to respondent's predecessor in interest by a permit pursuant to city ordiance, the permit was revocable; and, additionally, such a permit to use public property for private use cannot create any private right, title or interest in said property in favor of the permittee. Boise City v. Sinsel, 72 Idaho 329, 241 P.2d 173 (1952); Yellow Cab Taxi Service v. City of Twin Falls,68 Idaho 145, 190 P.2d 681 (1948); Keyser v. City of Boise, 30 Idaho 440, 165 P. 1121, L.R.A.1917F, 1004 (1917). Nor can an abutting property owner acquire a right to use a portion of the highway right of way for a private business purpose by prescription or acquiescence. Bare v. Department of Highways, 88 Idaho 467, 401 P.2d 552 (1965); Yellow Cab Taxi Service v. City of Twin Falls, supra.

The factual basis of respondent's claim for damages lies, therefore, in the elimination of customer parking along Main Street, such parking being entirely upon public property.

The power to regulate parking, including the power to prohibit it, on public thoroughfares is delegated by statute to both local authorities and officials of the State Highway Department. I.C. §§ 49-529 and 49-758. Furthermore, this court has held that the power of cities and villages in this State over the streets under their jurisdiction is exclusive and unlimited. Yellow Cab Taxi Service v. City of Twin Falls, supra; Foster's, Inc. v. Boise City, 63 Idaho 201, 118 P.2d 721 (1941); Carson v. City of Genesee, 9 Idaho 244, 74 P. 862 (1903).

The supervision and control of traffic on city streets necessarily inheres within the police powers of a municipality:

"The right to use the public ways of the state, and the control of that...

To continue reading

Request your trial
16 cases
  • Dawson Enterprises, Inc. v. Blaine County
    • United States
    • Idaho Supreme Court
    • August 12, 1977
    ...P.2d 397 (1958); Mabe v. State, 83 Idaho 222, 360 P.2d 799 (1961); Lobdell v. State, 89 Idaho 559, 407 P.2d 135 (1965); Snyder v. State, 92 Idaho 175, 438 P.2d 920 (1968); or by converting the airspace over an owner's land to public use, Roark v. City of Caldwell, 87 Idaho 557, 394 P.2d 641......
  • Kleiber v. City of Idaho Falls
    • United States
    • Idaho Supreme Court
    • February 19, 1986
    ...v. City of Ketchum, 100 Idaho 703, 604 P.2d 717 (1979); City of Nampa v. Swayne, 97 Idaho 530, 547 P.2d 1135 (1976); Snyder v. State, 92 Idaho 175, 438 P.2d 920 (1968); Yellow Cab Taxi Service v. City of Twin Falls, 68 Idaho 145, 190 P.2d 681 (1948). In Boise City v. Sinsel, supra, the Cour......
  • State ex rel. Moore v. Bastian
    • United States
    • Idaho Supreme Court
    • February 17, 1976
    ...inconvenience. James v. State, supra; Mabe v. State, supra; State v. Ensley, supra; Walker v. State, supra; see also Snyder v. State, 92 Idaho 175, 438 P.2d 920 (1968); Hagman, Urban Planning, pp. 325, 326 (1971); Sax, Takings and Police Power, 74 Yale L.J. 36 Although the error above discu......
  • Boise City By and Through Amyx v. Fails
    • United States
    • Idaho Supreme Court
    • July 14, 1972
    ...Rich v. Burdick, 83 Idaho 335, 362 P.2d 1088 (1961); Bare v. Dept. of Highways, 88 Idaho 467, 401 P.2d 552 (1965); Snyder v. State, 92 Idaho 175, 438 P.2d 920 (1968). Had it been the intent of the legislature that I.C. § 40-104 was to encompass streets and alleys laid out in the plats, ther......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT