State Dept. of Highways, Division of Highways v. Davis

• Decision Date: 06 April 1981
• Docket Number: No. 79SC147,79SC147
• Citation: 626 P.2d 661
• Parties: STATE DEPARTMENT OF HIGHWAYS, DIVISION OF HIGHWAYS, State of Colorado, Petitioner-Appellant, v. Edward DAVIS and Gertrude R. Davis, Respondents-Appellees, Heritage Savings and Loan Association; Marie R. DeWitt and Lloyd C. DeWitt, Trustees, D. Kirk Tracy; and Geneva C. Mosher, as Treasurer and Public Trustee of Prowers County, Respondents.
• Court: Colorado Supreme Court

Page 661

626 P.2d 661

STATE DEPARTMENT OF HIGHWAYS, DIVISION OF HIGHWAYS, State of Colorado, Petitioner-Appellant, v. Edward DAVIS and Gertrude R. Davis, Respondents-Appellees Heritage Savings and Loan Association; Marie R. DeWitt and Lloyd C. DeWitt, Trustees, D. Kirk Tracy; and Geneva C. Mosher, as Treasurer and Public Trustee of Prowers County, Respondents.

No. 79SC147.

Supreme Court of Colorado, En Banc.

April 6, 1981.

As Modified on Denial of Rehearing April 27, 1981.

J. D. MacFarlane, Atty. Gen., Richard J. Hennessey, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Vicki J. Fowler, Asst. Atty. Gen., Denver, for petitioner-appellant.

Andersen & Gehlhausen, P. C., John Gehlhausen, Lamar, for respondents-appellees.

No appearance for respondents.

ERICKSON, Justice.

We granted certiorari to review the court of appeals' decision in State Department of Highways v. Davis et al., 42 Colo.App. 250, 596 P.2d 400 (1979). We reverse and remand with directions for a new trial on the issue of damages to the remainder.

The State Department of Highways (petitioner) filed a petition to condemn a narrow strip of land owned by respondents to construct a service road for a freeway. See article 1 of title 38, C.R.S.1973. Prior to a jury trial to determine the value of the property taken and the damages to the remainder, the court, pursuant to section 38-1-101, C.R.S.1973, held an in limine hearing on respondents' motion to determine damages to the remainder caused by the condemnation. The parties stipulated that prior to the condemnation, respondents had two direct points of access onto State Highway 50. Both before and after the taking, respondents operated a store on their property which rented various types of equipment. The land was condemned to construct a frontage road to service the limited access highway. Respondents retained two points of direct access to the frontage road. The frontage road provided respondents with direct access onto State Highway 50 at a junction which was approximately 300 feet east of their property.

At the conclusion of the in limine hearing, the court declared that respondents' access to the remainder had been substantially impaired, and held that respondents could present evidence of damages to the remainder caused by the impairment of access. The court also permitted respondents' appraiser to testify as to his opinion on damages to the remainder caused by statutory restrictions on the erection of new advertising devices. See part 4 of article 1 of title 43, C.R.S.1973 (Colorado Outdoor Advertising Act).

At trial, respondents' appraiser testified that damages to the remainder which resulted from the taking of respondents' land were $26,389 because:

"Well, it's damage because in the before-condition he had prime highway frontage property which is the property to own. In the after-condition he didn't have prime highway frontage any more. They have put him on a frontage road which is approximately 300 feet east of his first turn-in point. This frontage road is also a dead end road which means that once you come to the end of this road you have to come and turn around and go back out. The possibility of advertising, for people headed west, they will see the property and the sign once they get down in front of the Davis property. Which means that if he wants to visit the business, they're going to have to wait for a cut-in and turn, back-track and do their business, back-track again and come back in. For the people going into Lamar east, they could see the sign and Davis could put a sign, turn-in 300 feet east. But the problem, your natural tendency, is to look to the right. That's the safe place to look. You will have a truck deceleration lane, you're going to have all kinds of traffic. All that would tend to block your view to the property. Assuming that you did see it, you would have to come down here and find the turn-in-point. Again, there would be no signs here. So you would be taking a guess about it. In the before-condition if you were leaving the Davis property, there was a shoulder along Highway 50 that you could pull on it and it would be relatively safe to speed up on the on-coming traffic and slip into the main street of traffic. Of course, any time you've got to cross a traffic to go into the other direction, you always have a danger. That is not necessarily the case here. Of course, you've still got the danger but now when you pull out of this area here, you're actually going to pull out into a deceleration lane. Which means that every truck that's going west in Lamar is going down this deceleration lane. So the hazard is going to increase a little bit because of this deceleration lane which does go down this direction."

One of the respondents, as landowner, expressed his opinion on damages to the remainder when asked the following questions:

"MR. GEHLHAUSEN: (Mr. Davis), in your opinion has the remainder of your land, ... been damaged by the taking of the State?"

"MR. DAVIS: Well, by taking the area that they have here, putting us back on a frontage road off the main highway, I think pretty near anybody with good sense at all can see what our damage has been.

"MR. GEHLHAUSEN: Would you explain to the jury just how that's been hurt back there?"

"MR. DAVIS: As I have said, it will damage it in our hedge against inflation because any highway-related business that we might sell this property to now will not have a good access off the highway and consequently that will hurt us in our over-all sale."

Petitioner's appraiser testified that in his opinion no damages to the remainder occurred as a result of the taking.

The parties stipulated to the value of improvements taken, and the primary issues for the jury were the value of the property taken and the damages to the remainder caused by impairment of access. The jury returned a verdict of $10,181 for the property actually taken, and $21,689 for damages to the remainder. The court entered judgment on the jury's verdict, and amended the award to include the stipulated value of the improvements.

Petitioner appealed from the $21,689 award for damages to the remainder. The court of appeals, in an opinion which relied in large part upon the fact that a portion of respondents' land was actually taken, affirmed the trial court. The opinion concluded that the trial court determined that respondents' right of access had been substantially impaired, and that the jury properly considered impairment of access in its determination of damages to the remainder. The court of appeals also concluded that statutory restrictions on a landowner's right to construct signs along freeways are proper factors for the jury to consider in determining damages to the remainder. These conclusions of law are before us for review. We conclude that the jury should not have been permitted to consider damages to the remainder caused by impairment of access and advertising restrictions, and that a new trial on the issue of damages to the remainder is required.

I. Denial of Access

The right of access is the right of a landowner who abuts on a street or highway to reasonable ingress and egress. Radinsky v. Denver, 159 Colo. 134, 410 P.2d 644 (1966); Minnequa Co. v. Denver, 67 Colo. 472, 186 P. 539 (1919); Pueblo v. Strait, 20 Colo. 13, 36 P. 789 (1894); City of Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883); People v. Ayon, 54 Cal.2d 217, 352 P.2d 519, 5 Cal.Rptr. 151 (1960). Covey, Frontage Roads: To Compensate or Not to Compensate, 56 N.W.L.Rev. 587 (1961); Campbell, The Limited Access Highway Some Aspects of Compensation, 8 Utah L.Rev. 12 (1962). A landowner's right of access to and from land abutting a highway may be reasonably regulated for the public safety or welfare under the police power. Hayutin v. Highway Department, 175 Colo. 83, 485 P.2d 896 (1971). 2A, J. Sackman, Nichols on Eminent Domain, § 6.4443(4) (rev. 3d ed. 1976); 1, Orgel, Valuation Under The Law of Eminent Domain, § 1 (2d ed. 1953). See generally, City of Boulder v. Kahn's Inc., 190 Colo. 90, 543 P.2d 711 (1975).

The power of the government to regulate access is limited, however, by Article II, Section 15 of the Colorado Constitution which provides: "Private property shall not be taken or damaged, for public or private use, without just compensation...." The question of when the regulation of land under the police power becomes a "taking" for which compensation is constitutionally required is a matter of degree. See Collopy v. Wildlife Commission, --- Colo. ---, 625 P.2d 994 (1981). While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922).

The issue, therefore, is whether the respondents can recover damages to the remainder of their property caused by the limitation of access. Resolution of the damages issue requires us to determine whether the recovery of damages for impairment or limitation of access depends on whether part of the abutting landowner's property has been taken.

II. Substantial Impairment of Access

A long line of cases in Colorado have dealt with impairment of an abutting landowner's right of access and the effect of the impairment on the damage issue in an eminent domain proceeding. See, e. g., Shaklee v. County Comm., 176 Colo. 559, 491 P.2d 1366 (1971); Hayutin v. Highway Department, supra; Thornton v. Colo. Spgs., 173 Colo. 357, 478 P.2d 665 (1970); Majestic Hts. v. Co. Comm., 173 Colo. 178, 476 P.2d 745 (1970); Troiano v. Colorado Department of Highways, 170 Colo. 484, 463 P.2d 448 (1969), compare, Minnequa Co. v. Denver, supra; Radinsky v. Denver, supra; Gayton v. Colorado, 149 Colo. 72, 367 P.2d 899 (1962); Boxberger v. State Highway Commission, 126 Colo. 526, 251 P.2d 920 (1952); Denver Bank v. Commissioners, 105 Colo. 366, 98 P.2d 283 (1940); Denver Railway Co. v. Glodt, 67 Colo. 115, 186 P. 904 (1919); Pueblo v....