State ex rel. Dept. of Highways v. Linnecke

• Decision Date: 16 April 1970
• Docket Number: No. 5978,5978
• Citation: 86 Nev. 257,468 P.2d 8
• Parties: The STATE of Nevada, on relation of its DEPARTMENT OF HIGHWAYS, Appellant, v. Harry F. LINNECKE and Lillian B. Linnecke, his wife, Respondents.
• Court: Nevada Supreme Court

Page 8

468 P.2d 8

86 Nev. 257

The STATE of Nevada, on relation of its DEPARTMENT OF

HIGHWAYS, Appellant, v. Harry F. LINNECKE and Lillian B. Linnecke, his wife, Respondents.

No. 5978.

Supreme Court of Nevada.

April 16, 1970.

Harvey Dickerson, Atty. Gen., Kermitt L. Waters, Deputy Atty. Gen., Carson City, Raymond Free, Deputy Atty. Gen., Reno, for appellant

Frank R. Petersen, Reno, Rev., for respondents.

OPINION

ZENOFF, Justice.

This is an action in eminent domain. The state was taking .726 of an acre of property abutting Highway 40 owned by Harry and Lillian Linnecke, husband and wife. Highway 40 was to be made into a controlled access highway which would become Interstate 80, part of the federal highway system.

Before the taking, the Linneckes had direct access from their land onto Highway 40, but after the taking their access from the land was by a frontage road which required them to travel one and one half miles farther in order to reach their land from the highway or to get to the highway from their land. Respondents successfully contended in the trial court that the enforced circuity of travel to and from the property may be taken into account in fixing severance damages.

The trial court ruled, first, as a matter of law that direct access to the land was substantially impaired entitling the owners to compensation and, secondly, that the jury should assess damages in relation to special benefits that might accrue. The state appeals from the jury award of $25,000 representing $2,000 for the value of the property taken and $23,000 in severance damages to the remainder of the parcel.

The basic problem on appeal is: Does an abutting property owner's right of access to a public highway entitle him to compensation for severance damages where part of his land is taken in order to convert a conventional highway into a controlled-access highway so that access to and from his remaining property is controlled by a frontage road.

The state courts are divided in their resolution of this problem. Cf. People v. Ricciardi, 23 Cal.2d 390, 144 P.2d 799 (1943); State ex rel. State Highway Commission v. Danfelser, 72 N.M. 361, 384 P.2d 241 (N.M.1963); Selig v. State, 10 N.Y.2d 34, 217 N.Y.S.2d 33, 176 N.E.2d 59, 61 (1961); Northern Lights Shopping Center, Inc. v. State, 20 A.D.2d 415, 247 N.Y.S.2d 333 (1964), affirmed 15 N.Y.2d 688, 256 N.Y.S.2d 134, 204 N.E.2d 333 (1965); Bopp v. State, 19 N.Y.2d 368, 280 N.Y.S.2d 135, 227 N.E.2d 37 (1967). But see Priestly v. State, 23 N.Y.2d 152, 295 N.Y.S.2d 659, 242 N.E.2d 827 (1968), where the court held that the circuity of travel may be unsuitable access for the highest and best use of the remaining property. Since Priestly v. State, supra, the following cases support the awarding of compensation in circuity of travel-access cases: Argersinger v. State, 299 N.Y.S.2d 882 (N.Y.App.1969); Columbus Holding Corp. v. State, 60 Misc.2d 199, 302 N.Y.S.2d 407 (Ct.Cl.N.Y.1969); Taylor v. State, 32 A.D.2d 884, 302 N.Y.S.2d 174 (N.Y.App.1969); In re New Police Station House Pct. No. 68, 32 A.D.2d 1059, 304 N.Y.S.2d 74 (N.Y.App.1969).

Generally, the emerging weight of authority holds that '(w)hen the controlled-access highway is constructed upon the right of way of the conventional highway and the owner's ingress and egress to abutting property has been destroyed or substantially impaired, he may recover damages therefor. The damages may be merely nominal or they may be severe. Other means of access such as frontage roads as in the instant case may be taken into consideration in determining the amount which would be just under the circumstances.' State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 350 P.2d 988, 992 (Ariz. 1960).

An abutting owner of a public highway has a special right of easement in a public road for access purposes. This is a property right of easement which cannot be damaged or taken from the owner without due compensation. People ex rel. Department of Public Works v. Murray, 172 Cal.App.2d 133, 342 P.2d 485, 488 (Cal.App.1959). But an owner is not entitled to access to his land at all points in the boundary to it and the highway, although entire access to his property cannot be cut off. If he has free and convenient access to his property and his means of egress and ingress are not substantially interfered with, he has no cause for complaint. Breidert v. So. Pac. Co., 61 Cal.2d 659, 39 Cal.Rptr. 903, 394 P.2d 719, 722 (1964); City of Phoenix v. Wade, 5 Ariz.App. 505, 428 P.2d 450, 454 (1967). The determination of whether such substantial impairment has been established must be reached as a matter of law. The extent of such impairment must be fixed as a matter of fact. Breidert v. So. Pac. Co., supra; People v. Ricciardi, supra; City of Phoenix v. Wade, supra; State Highway Comm'n v. Manry, 143 Mont. 382, 390 P.2d 97 (1963); Thomsen v. State, 170 N.W.2d 575, 580 (Minn. 1969); McMoran v. State, 55 Wash.2d 37, 345 P.2d 598 (1959); State ex rel. Herman v. Wilson, 103 Ariz. 194, 438 P.2d 760 (1968); Balog v. State, 177 Neb. 826, 131 N.W.2d 402 (1964).

2. A frontage road or service road is a highway facility adjacent to and part of an access-free road designed to provide access to the abutting land which, because of the control of access on the express road, is without means of ingress or egress from that road.

This present problem is one where the new interstate road is built on the location of a pre-existing conventional road. When the interstate road is built on a new location or alignment, i.e., where no road previously existed, the construction of the freeway gives the abutting property owner no right of access. The owner still has access to the old road, his only loss is access to a major thoroughfare that has been relocated. 56 Nw.U.L.Rev. 587 (1961). ¹

If the abutter has suffered any compensable damage, it is because...