State by Mondale v. Gannons Inc., s. 39867

CourtSupreme Court of Minnesota (US)
Citation145 N.W.2d 321,275 Minn. 14
Docket Number39950,Nos. 39867,s. 39867
PartiesSTATE of Minnesota, by Walter F. MONDALE, its Attorney General, Appellant, v. GANNONS INC., et al., Respondents-below, Gannons Inc., Respondent.
Decision Date19 August 1966

Page 321

145 N.W.2d 321
275 Minn. 14
STATE of Minnesota, by Walter F. MONDALE, its Attorney
General, Appellant,
GANNONS INC., et al., Respondents-below, Gannons Inc.,
Nos. 39867, 39950.
Supreme Court of Minnesota.
Aug. 19, 1966.
On Appeal from Taxation of Costs
Oct. 7, 1966.

Page 323


[275 MINN 14] 1. If regulation or restriction falls within the state's 'police power,' no compensable loss has occurred. Included in this category are the establishment of oneway streets and lanes of traffic; median strips prohibiting or limiting crossovers from one lane of traffic to another; restrictions on U-turns, left and right turns, and parking; and regulations governing the weight, size, and speed of vehicles. No compensable damages are sustained by such restrictions and regulations which govern all motorists, including abutting property owners, once they are on the traveled portion of the thoroughfare.

2. What is reasonable ingress and egress where the right of access is involved is a fact question. If the jury decides that the location of the proposed interchange substantially impairs a property owner's right to reasonably convenient and suitable

Page 324

access to the main thoroughfare, he is entitled to damages.

3. The measure of damages a property owner is entitled to recover where the right of access is involved is the difference between the market value of the property before and after suitable access has been denied, the diminution in value of only the real estate being relevant. In awarding damages the jury may consider any change in the highest and best use which may have consequently occurred.

[275 MINN 15] 4. The separation of Highway No. 5, which profoundly affected the flow of traffic in the vicinity of the Gannon property, was not a compensable aspect of the state's construction, since the only features of highway construction which may form the basis for the payment of compensation for damages to access are those features dealing with access from abutter's property to the main traveled lanes.

5. When in a condemnation proceeding damages are alleged by an abutting property owner as the result of the construction of a controlled access highway on the existing thoroughfare, a condemnor is entitled to instruction on the police power of the state to control traffic by median strips or dividers and by other reasonable restrictions or regulations without payment of compensation.

6. A party is entitled to an instruction based upon his theory of the case if there is evidence to support it, and if the requested instruction is not entirely proper, it is the duty of the trial court to correct it.

7. The loss of view from the Gannon premises of the trees, foliage, and greenery located in the boulevards on either side of the traveled portion of West Seventh Boulevard was not compensable.

8. Interest on awards in eminent domain proceedings is entirely controlled by statute and the computation of interest is properly a matter pertaining to the entry of judgment; the law presumes that it will not be included in the award.

[275 MINN 16] Robert W. Mattson, Atty. Gen., Perry Voldness, Deputy Atty. Gen., Karl J. Herman, Special Asst. Atty. Gen., St. Paul, for appellant.

Tracy, Rowland & Mertensotto, St. Paul, for respondents.


NELSON, Justice.

These are two consolidated appeals, one from an order of the trial court denying a motion for a new trial and one from the judgment subsequently entered.

The State of Minnesota petitioned for the condemnation of certain lands for trunk highway purposes and is the appellant; Gannons Inc. was respondent below and on appeal.

Gannons owns and operates a restaurant and cocktail lounge in the city of St. Paul, Minnesota. Prior to January 1961, it had 215 feet of frontage on what was then West Seventh Boulevard, an undivided thoroughfare with a traveled surface of 85 feet and a total width of approximately 200 feet. The boulevards on either side of the traveled portion of the roadway were ornamented with grass and trees. South of Gannons, West Seventh Boulevard entered directly onto the Seventh Street Bridge. The Mississippi River Boulevard intersected West Seventh Boulevard south of the Gannon premises at the entrance to the Seventh Street Bridge and north of Gannons West Seventh Boulevard entered into both Edgcumbe Road and West Seventh Street.

As a result of highway construction, completed November 15, 1962, the main traveled lanes of the roadway adjacent to Gannons were divided to provide for one-way traffic in northerly and southerly directions, and the alignment of the new thoroughfare shifted to the west. No significant change of grade occurred adjacent to the restaurant, where a portion of old West Seventh Boulevard was converted into a service

Page 325

drive for the use of abutting properties. Gannons' immediate access to the main traveled lanes was confined to ramp roads via the frontage road connecting with the northbound lane at a point 750 feet [275 MINN 17] north of the restaurant. Access from the northbound lane to Gannons was made available by a ramp joining the frontage road adjacent to Gannons at a point 250 feet south of the south entrance to Gannons' parking lot, and by a ramp entering the frontage road at a point 190 feet north of the north entrance to Gannons' parking lot.

Access from Gannons to the southbound lane and from the southbound lane to Gannons was rendered circuitous and is available either at a half-cloverleaf interchange 400 feet south of the restaurant or at a point 750 feet north of the property.

Upon learning of the plans for highway construction, Gannons petitioned to compel the state to commence a condemnation proceeding. On March 22, 1961, the district court of Ramsey County granted the petition, and action was commenced and commissioners appointed in October 1961 to determine damages, if any, resulting from the state's construction program. The commissioners filed their report on July 3, 1962, to the effect that no damages had resulted. Gannons appealed to the district court from this decision and the case was brought on for trial by a jury which awarded damages.

During the trial in district court Eugene B. McDonough, the president of Gannons and a registered professional surveyor, testified that due to the construction of the interchange the damages to Gannons' properties amounted to $101,000. He alleged a change in the highest and best use of the property from restaurant to industrial as a result of the change in access. On cross-examination it was revealed that Gannons had completely redecorated and refurnished the restaurant interior and repainted the exterior after the highway construction was completed. It was also revealed that an extensive advertising campaign was conducted at that time. The most important factor brought out under cross-examination was that its restaurant business had increased since the state's highway construction improvement and that more patronage than ever before had reached the property.

Deward Lorens, a right-of-way engineer for the State Highway Department, testified in behalf of the state that in his opinion Gannons had reasonably suitable and convenient access, in spite of the fact that the restaurant cannot be seen by the traveling public going in an easterly[275 MINN 18] direction across the new Mississippi River bridge, until after the turn-off, and by those traveling in a westerly direction until they are past their turn-off. He compared Gannons to similar properties which had prospered after highway construction of a comparable nature to that completed adjacent to Gannons.

The State Highway Department also called one of the commissioners who testified that the reason for their denial of an award was that the access was suitable to Gannons and consequently its properties had not been damaged by the highway construction.

One construction feature more than any other that changed the nature of the access to Gannons restaurant was the division of the main traveled lanes by a median strip, which prevented traffic crossing from the north to the southbound lanes. According to Mr. McDonough, the most important factor contributing to the suitability and desirability of the Gannons access prior to the reconstruction was the fact that access to West Seventh Boulevard was tantamount to access to and from Minneapolis, the Mississippi River Boulevard, Edgcumbe Road, West Seventh Street, and downtown St. Paul, because at that time West Seventh Boulevard was not separated or divided by a median in front of Gannons.

The general rule is that any evidence which legitimately bears upon the

Page 326

market value, either before or after the taking, including damage inflicted upon the part remaining, should be received. State, by Lord v. North Star Concrete Co., 265 Minn. 483, 122 N.W.2d 118. Where property is taken for public use in condemnation proceedings, any evidence is competent and any fact may properly be considered which legitimately bears on the market value of the property. State, by Lord v. Malecker, 265 Minn. 1, 120 N.W.2d 36; Regents of the University of Minnesota v. Irwin, 239 Minn. 42, 57 N.W.2d 625; State, by Lord v. Red Wing Laundry & Dry Cleaning Co., 253 Minn. 570, 93 N.W.2d 206. 1 The landowner cannot claim inconsistent uses for land which was taken by condemnation nor can be show his particular plans and intentions; however, he may show any uses, present[275 MINN 19] or future, which are sufficiently practicable and probable and will be likely to influence the price which a present purchaser would give for the land. State, by Lord v. Casey, 263 Minn. 47, 115 N.W.2d 749; State, by Lord v. Malecker, supra.

The record indicates that a value witness, Mr. Winfield A. Mitchell, as well as Mr. McDonough, based his appraisal of damages upon anticipated losses immediately before and after the highway construction was commenced. As the record...

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