State ex rel. Department of Highways v. Bowles

• Court: Oklahoma Supreme Court
• Writing for the Court: BERRY
• Citation: State ex rel. Department of Highways v. Bowles, 472 P.2d 896, 1970 OK 129 (Okla. 1970)
• Decision Date: 30 June 1970
• Docket Number: No. 42298,42298
• Parties: STATE of Oklahoma ex rel. DEPARTMENT OF HIGHWAYS of the State of Oklahoma, Plaintiff in Error, v. G. W. BOWLES and Hazel Bowles, husband and wife, Community State Bank of Tulsa, Oklahoma, Defendants in Error.

Page 896

472 P.2d 896

STATE of Oklahoma ex rel. DEPARTMENT OF HIGHWAYS of the State of Oklahoma, Plaintiff in Error, v. G. W. BOWLES and Hazel Bowles, husband and wife, Community State Bank of Tulsa, Oklahoma, Defendants in Error.

No. 42298.

Supreme Court of Oklahoma.

June 30, 1970.

Syllabus by the Court

1. Where portion of condemnee's land adjacent to frontage road upon an existing highway is taken in order to convert into limited access highway, a jury properly may consider detriment to market value of landowner's property caused by relocation of means of ingress and egress from limited access road when assessing damages for condemnation.

2. Where a part only of a tract of land is condemned and damages are sought for the value of that taken and consequential damages to that not taken, the measure of damages is the difference between the fair market value of the whole property immediately before the taking and the fair market value of the portion left immediately after the taking; and while evidence to establish any additional damage beyond that is not permissible, evidence may be admitted of specific elements which contribute to the depreciation in market value.

Appeal from District Court of Tulsa County; W. Lee Johnson, Trial Judge.

Condemnation proceedings for portion of defendants' land adjacent to existing service road when converting to limited access highway which resulted in detriment to property from destruction of convenient means of ingress and egress to service road. Affirmed.

John Paul Walters, Chief Counsel, by Court Pappe, Floyd W. Taylor, Legal Intern, Oklahoma City, for plaintiff in error.

Smith, Brown & Martin, Tulsa, for defendants in error.

BERRY, Vice Chief Justice.

The primary issue involves a jury award of compensation as damages for property taken under eminent domain proceedings. A strip of land along a service (frontage) road adjacent to an existing highway was taken. Although defendants' access to the service road was not diminished, convenient means of ingress and egress from the service road were eliminated. Although means of ingress and egress from the service road to the highway were provided at other locations, the changes resulted in detriment to the market value of defendants' property.

The State Highway Department commenced this action as plaintiff to condemn and sever a strip 100 feet long and 23 feet wide along the front of defendants' property, upon which they operated a drive-in restaurant. The property faced upon the south service road to the Skelly By-Pass in Tulsa. Necessity for this action was to convert Skelly By-Pass into a limited access highway. This required widening the By-Pass and closing an intersection. Also closed were a crossing off median at South 25th Street West (about 600 feet east from defendants' property), and an exit from the By-Pass onto the service road about 660 feet west of defendants' property. The adjacent By-Pass and service road ran east and west. After the conversion means of ingress and egress from limited access highway to service road was changed to approximately one mile to the west and a half mile east.

Condemnation proceedings were regularly conducted, the commissioners made appraisal and filed their report, and both parties filed demands for a jury trial. Trial to a jury resulted in a verdict for defendants of $21,000.00 as condemnation damages. Plaintiff has brought this appeal.

Only matters pertinent to the issues raised will be considered. The appeal is presented under four propositions, the first of which is:

'The closing of 25th Street West Avenue was not a condemnation of defendants' rights of access and egress, but a valid exercise of the Police Power, giving the defendants no rights to compensation.'

As mentioned, South 25th Street West which lies about 600 feet east of defendants' property was closed, thus destroying the most immediate means of ingress to defendants' business.

Plaintiff cites and relies upon statute (69 O.S.1961 §§ 11.1(a), 11.3 and 11.4, now 69 O.S.Supp.1968 § 1301 et seq.) showing a commission or governing body has authority to designate and establish existing streets or highways as limited access facilities, and to close existing streets or highways to protect such limited access facility. On this aspect defendants take no issue.

Plaintiff urges defendants are entitled only to reasonable access to the converted highway via a frontage road. However, that defendants have no compensable right to the flow of traffic in front of their property, and a landowner's access to his property is all that is compensable.

Plaintiff cites two cases from the Supreme Court of Kansas: Brock v. State Highway Commission, 195 Kan. 361, 404 P.2d 934; Ray v. State Highway Commission, 196 Kan. 13, 410 P.2d 278. These cases present plaintiff's theory on appeal, and what is undoubtedly advanced as a new theory respecting condemnation in this State. These cases deny compensation to landowners in instances when access to a limited access highway from a frontage road is changed to landowner's detriment, without the taking or severing of landowner's property. These decisions did not involve actual taking of property. Without considering what our conclusion might be under the same factual circumstances, we conclude those decisions are neither in point nor persuasive herein.

The issue sought to be presented properly is combinable for discussion with the second contention:

'Defendants retain reasonable access to their property and therefore should not be entitled to damages for impairment of access thereto.'

Plaintiff argues if defendants are entitled to compensation for closing South 25th Street West 600 feet from their property, what is the result to property owners 650 feet or 1000 feet from access. Plaintiff then cites Springville Banking Company v. Burton, 10 Utah 2d 100, 349 P.2d 157. In that case there was no taking of property but only interference with access to the property. Plaintiff relies upon language to the effect that costs of changing highways, to control traffic and protect the traveling public, would become prohibitive if abutting landowners were allowed compensation for damages in such cases. Plaintiff urges that selfish interests of a few cannot be given priority over the general public good. We are cognizant of the practical aspect of this reasoning. However, we do not believe it applicable in the disposition of the present case.

Plaintiff's petition states that .05 acre of defendants' land be severed together 'with all abutters rights, including all rights to access from the remaining portion of defendants' land onto the LIMITED ACCESS HIGHWAY to be constructed on the above described' property. The petition prays appointment of commissioners to appraise defendants' injury resulting from the taking, including 'any and all damages or injury that may be sustained directly or indirectly to the remaining lands of the defendants' by reason of appropriation.

During trial plaintiff attempted to exclude from consideration of the jury any evidence tending to show damages resulting from the closing of South 25th Street West and closing of entrance to the service road at a point 660 feet west of defendants' property. Plaintiff's contention appears bottomed upon reasoning expressed in Ray, supra, at 410 P.2d page 283:

'Where property owners are afforded complete ingress and egress to a frontage road upon which their property abuts, and they have reasonable access via the frontage road to main traveled lanes of a controlled access highway, any inconvenience suffered by them is merely non-compensable circuity of travel. * * *'

Consistent with this theory plaintiff excepted to court's Instruction No. 9. Plaintiff urges this instruction made the closing of South 25th Street West and the right of free and convenient access thereto a part of the condemnation proceedings, and when Instruction No. 9 was given along with Instruction No. 7, the jury considered damages that were non-compensable.

Instruction No. 7 states:

'You have heard the parties contend on the one hand that the available new access roads, or entryways to the Drive-in will not afford reasonable access for the continued operation of the Drive-in with the same economic value as it was operated; * * *

'In this connection you will give consideration to the respective contentions of the parties only insofar as you find that the market value of the defendants' property is affected by these changes of access. * * *'

Plaintiff argues the landowners' reasonable access is the only compensable interest, and the access available for the traveling public cannot be considered.

Plaintiff's theory in substance, seems to be supported by decisions from other jurisdictions which hold a property owner has no right of compensation for diversion of traffic resulting from relocation or rerouting of a highway. This reasoning is inapplicable to the present case. Here we are concerned with actual taking and severing of property for the specific purpose of establishing a limited access highway and, in the process, destroying the landowners' convenient access to the main highway, although providing other, less convenient means of access.

Specifically referring to Instruction Nos. 7 and 9, these instructions did put in issue for the jury's consideration those damages which were consequential, due to the relocation of the access from the main highway to defendants' property.

Independent research on the particular point raised by plaintiff had led us to many cases and textbooks. In Orgel on Valuation Under Eminent Domain, Vol. 1 § 57, pp. 265, 266, the author discusses various methods courts have used to limit the owner's recovery of damages due to...