State ex rel. State Highway Commission v. Danfelser
| Citation | 72 N.M. 361,384 P.2d 241,1963 NMSC 138 |
| Decision Date | 05 August 1963 |
| Docket Number | No. 7021,7021 |
| Parties | STATE of New Mexico ex rel. STATE HIGHWAY COMMISSION of New Mexico, Petitioner-Appellant, v. Lee DANFELSER and Byrdis Danfelser, Defendants-Appellees. |
| Court | Supreme Court of New Mexico |
Earl E. Hartley, Atty. Gen., M. W. Hamilton, Hadley Kelsey, Joseph L. Droege, Epifanio Garcia, John C. Worden, Joseph O. Walton, Special Asst. Attys. Gen., Santa Fe, for appellant.
Wilson, Ahern & Montgomery, Albuquerque, for appellees.
Hannett, Hannett & Cornish, Scott H. Mabry, Owen B. Marron, Rodey, Dickason, Sloan, Akin & Robb, W. A. Keleher and Timothy B. Keleher, Modrall, Seymour, Sperling, Roehl & Harris, Lewis R. Sutin, Albuquerque, Herman W. Atkins, Denny & Glascock, Gallup, amici curiae.
In view of the motion for rehearing filed by appellees, supported by their brief, two exhaustive briefs filed by amici curiae, and appellant's brief in response thereto, the original opinion is withdrawn and the following substituted:
The state appeals from a judgment in a condemnation action granting the defendants Danfelsers damages for loss of access to a highway.
The case was tried in the district court upon stipulation, from which the following appears:
The state acquired, by these condemnation proceedings, a strip of land owned by the defendants, 75 feet wide and about 770 feet long, comprising approximately 1.376 acres of land. The property taken formerly fronted upon the right-of-way of U. S. Highway 66.
Prior to the taking, there was direct access from the defendants' land to the easterly-bound traffic lanes of what is termed in the stipulation as 'old U. S. Highway 66.' The old highway was a four-laned road with a median divider, and there were no crossovers directly in front of defendants' property. It was stipulated that Highway 66 is now renumbered as Interstate 40 and that the condemnation was necessitated for the building of Interstate 40 and its merger with old U. S. Highway 66 at the easterly city limits of the city of Albuquerque. Interstate 40 was built somewhat to the north of defendants' property, but what was referred to as property was taken for the purpose of constructing a two-way frontage road, by which the defendants' property could connect with U. S. Highway 66 or Central Avenue on the west at an ongrade intersection, and to the east with a one-way connection ramp to reach Interstate 40. A chain-link fence was constructed, prohibiting traffic from entering upon the controlled-access highway except by way of the points of connection. The parties also stipulated that the defendants' land, both before and after the taking, was unimproved and that its highest and best use was potential commercial and that the market value of the lands remaining had been reduced by the loss of access directly to the main-traveled portion of old U.S. 66. It was agreed that the defendants were entitled to compensation for the land actually taken in the sum of $19,264.00, and that the defendants were entitled to $15.653.00 as compensation for drainage damages to the remaining lands; and these two items of damage were paid for by the state prior to the appeal.
In addition to the provisions of the stipulation which have been summarized above, the two concluding paragraphs of the stipulation are as follows:
'16. That the only questions remaining to be determined in this cause are questions of law as follows:
'(1) Is the depreciation in the market value of Defendants' property which has been occasioned by the loss of access directly to the main travelled portion of old U.S. 66 caused by a reasonable and valid exercise of police power and therefore non-compensable?
'(2) Does the construction of the two-way frontage road operate in complete mitigation of damages for loss of access?
'(3) Does the construction of the two-way frontage road operate in partial mitigation of damages for loss of access?
'(4) Under the facts and circumstances stipulated herein, are the damages which have been caused by the depreciation in market value of Defendants' property by reason of loss of access directly to the main travelled portion of old U.S. 66 compensable?
The trial court, based upon the stipulation, adopted the following conclusions of law:
'I.
'That the depreciation in the market value of the Defendants' property, which has been occasioned by the loss of access directly to the main travelled portion of old U.S. 66 was in no way caused by a reasonable and valid exercise of police power and therefore the damage occasioned by said loss of access is compensable.
'II.
'That the construction of the two-way frontage road does not operate to completely mitigate the damage for loss of access.
'III.
'That the construction of the two-way frontage road does operate in partial mitigation of damages for loss of access.
'IV.
'That under the facts and circumstances stipulated herein, the damages which have been caused by the depreciation in market value of Defendants' property by reason of loss of access directly to the main travelled portion of old U.S. 66 are compensable.'
The judgment granted to the defendants the amounts hereinabove mentioned for the taking of the land and the drainage damage, and in addition awarded the defendants the agreed amount of $43,120.00 by reason of the loss of access. This appeal relates solely to the award of damages for the loss of access to the defendants' remaining lands.
We are thus squarely faced with the question as to whether or not, under these facts, whatever damage was occasioned by loss of access is compensable. It is of importance to note that we are not here concerned with any limitation of access to Interstate 40, because the defendants' property does not border upon it--we are only dealing with the limited question of whether the defendants are entitled to damages because their former access to Highway 66 has been taken away and a portion of their property condemned for a frontage road so as to give them entrance and exit to the road upon which they formerly fronted.
The authorities are in hopeless conflict on this subject. It would seem that this is one phase of the law upon which courts, sometimes even within the same jurisdiction, have adopted seemingly inconsistent views, and, in addition, in almost all of the cases, there are either vigorous dissents or special concurring opinions which join in the result only. There seems to be a radical difference in viewpoint among justices who have been required to rule upon the point. This conflict is so pronounced that most of the cases contain lengthy dissertations expounding the views of the author of the opinion or the dissent.
In an effort to avoid encumbering the law books to an additional extent, we propose to state the rules that are apparently followed in the jurisdictions which have determined the question, and thereafter announce our considered judgment as to what is the proper rule for the state of New Mexico, giving to the student, or those interested in the subject, some of the most outstanding authorities, texts and law review articles, which are cited in footnotes, for such examination as they may desire.
The 'right of access' is apparently judge-made, the exact origin of which is difficult to determine. 1 Nevertheless, it is now considered a property right and may be loosely defined as the right of ingress to and egress from the property via the abutting street or highway. Generally speaking, all of the courts recognize such a right. There is also almost complete unanimity among the courts that traffic regulations, such as no-left-turns, one-way-street restrictions, and the like, are not an interference with the abutter's right of access. In addition to this limitation, practically all of the courts at least give 'lip service' to the doctrine that the right of access is not compensably damaged by the diversion of traffic or by circuity of travel. It is, however, with reference to the application of these latter two limitations that the courts seem to come to a parting of the ways. Thus, some courts have held that although the landowner is not entitled to damages for diversion of traffic, nevertheless they have also held it proper for a witness to testify and a jury to consider that the value of the property has been decreased because the main stream of traffic no longer goes by the property involved. Other courts, on the contrary, take the view that the loss of the main stream of traffic and its effect on property values may not be considered. To us, there can be no middle ground. It is incongruous to say, on the one hand, that diversion of traffic is not a compensable item of damage, and, on the other, to allow the same to be considered as affecting values. Either the same should be considered for all purposes, or disregarded for all purposes.
Another disagreement appearing in the decisions relates to the police power of the state, some of the courts holding that the taking of access comes within the police power and in non-compensable, while others have determined that it is not within the limits of police power and must be compensated for in eminent domain. In view of our disposition of the problem, we do not feel that there need be any determination as to whether the instant case falls within or without the police power of the state.
Still another source of conflict among the courts is the fact that some have determined that the right of access, even though interfered with, is only compensable if a portion of the property owner's...
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