State ex rel. State Highway Commission v. Mauney

• Decision Date: 07 March 1966
• Docket Number: No. 7639,7639
• Citation: 411 P.2d 1009,1966 NMSC 35,76 N.M. 36
• Parties: STATE of New Mexico ex rel. STATE HIGHWAY COMMISSION of New Mexico, Petitioner-Appellant, v. Vance MAUNEY, Helen S. Mauney, Willis A. Smith, Jr., Jane B. Smith and Ralph P. Wolf, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 1009

411 P.2d 1009

76 N.M. 36

STATE of New Mexico ex rel. STATE HIGHWAY COMMISSION of New Mexico, Petitioner-Appellant, v. Vance MAUNEY, Helen S. Mauney, Willis A. Smith, Jr., Jane B Smith and Ralph P. Wolf, Defendants-Appellees.

No. 7639.

Supreme Court of New Mexico.

March 7, 1966.

Earl E. Hartley, Atty. Gen., Hadley Kelsey, Joseph L. Droege, John C. Worden, Neil C. Stillinger, Richard T. Whitley, Sp. Asst. Attys. Gen., Santa Fe, for appellant.

Botts, Botts & Mauney, Gerald R. Cole, Jethro S. Vaught, Jr., Albuquerque, for appellee.

CHAVEZ, Justice.

This is an action for a declaratory judgment filed by the State Highway Commission of New Mexico, which alleged that their actions concerning the defendants' property were a proper exercise of the police power of the state and that no compensable taking of defendants' access to State Road 422 resulted from those actions. The trial court rendered judgment for the defendants and the petitioner appeals.

The petitioner-appellant will be referred to as the 'Commission,' and the defendants-appellees will be referred to as the 'landowners.' The defendant-lessee, whose rights in this case are dependent on those of the lessors-owners, is included in the latter term.

The landowners possessed, as owners, two tracts of land separated by State Road 422. The road was a four-lane highway, running generally north and south. There were two southbound and two northbound lanes, with a depressed medial divider and a fence down the center of the median in the vicinity of landowners' property. The larger tract of property was located on the east side of the highway and has always been, and is today, unimproved. This tract is referred to as tract 2. The smaller tract, referred to as tract 1, was raised, in part, to coincide with the grade of State Road 422, after the landowners had obtained a driveway permit to enter State Road 422. This permit has never been revoked. Landowners then filled in the state's right-of-way between tract 1 and the highway. Upon completion of a service station, landowners then operated said station from February 1, 1960, until March 1, 1961. These facts indicate that the landowners had direct access to the southbound lanes of State Road 422, but could not directly reach the northbound lanes due to the fence in the median.

The Commission started highway project I 025-4(23)238 on February 8, 1961. The project involved the construction of two frontage roads, one on either side of State Road 422, within the original right-of-way. These frontage roads extend north from the interchange of State Roads 422 and 44 (Placitas Interchange), abut landowners' tracts 1760 feet from the interchange, and continue north to a dead-end 7500 feet north of the interchange.

Where the frontage roads abut the tracts, they are on the same grade as the original State Road 422. The Commission used the fill which landowners had placed in the right-of-way for their driveway when it constructed the frontage road in front of tract 1.

Guard fences were placed between the frontage roads and the original State Road 422 to prevent traffic from moving between them except at the Placitas Interchange. Therefore, landowners must utilize the frontage roads to reach their tracts. In order to move a vehicle from the through lanes of State Road 422 to the tracts, one must transit the distances and grades of the interchange and travel about 1760 feet along the frontage roads.

The construction of the projects, and more particularly the construction of the barrier fence between the frontage road and the southbound lanes, has caused a depreciation of the market value of both tracts 1 and 2. The trial court concluded that the landowners had suffered compensable damage by reason of deprivation of access to tract 1, but no compensable damage as to tract 2. It is from the finding of compensable damage to tract 1 that the Commission appeals.

This is not the first case, resulting from the creation of limited access highways, to come before this court. The parties have presented excellent briefs which call attention to the variety of conflicting solutions and decisions made by the courts of this country. However, the general principles outlined in closely related New Mexico cases must be applied when applicable.

Both parties agree that it is clear that the state does not owe a duty to the landowner to send traffic past his property. The damage to defendant's business. when a road is straightened, diverting traffic over a new part of the road, is not compensable damage. Board of County Com'rs of Santa Fe County v. Slaughter, 49 N.M. 141, 158 P.2d 859.

In State ex rel. State Highway Commission v. Silva, 71 N.M. 350, 378 [76 N.M. 40] P.2d 595, decided in 1962, this court announced principles which are applicable to the instant case. We there recognized that highway development altered the ingress and egress of a landowner. A new highway was constructed on the opposite side of the old highway on which the landowner abutted. The old highway became a frontage road and had a dead-end about 800 feet north of the property. The landowners were required to travel about 350 feet to the south to utilize a portion of a traffic interchange when leaving or entering their property. This court recognized that access to the highway which landowners abut is a property right of which they cannot be deprived without just compensation as provided in Art. II, Sec. 20, New Mexico Constitution. However, in State ex rel. State Highway Commission v. Silva, we said:

'The growing use of automotive transportation naturally led to many problems connected with the health and general safety of the traveling public and to the necessity for restrictions and regulations concerning the use of public highways. With the construction of modern, high-speed, through interstate highways came the necessity for controlled access to and from such highways in the interest of the safety of the public generally. It is well settled that limitation or regulation of highway traffic comes under the police power. * * * it cannot be doubted that the state, in the exercise of its police power, in the interest of the safety of the traveling public, has the right to limit or control access to certain highways. * * *'

This court also considered the fact that the frontage road which the landowners were forced to use was a dead-end similar to the one in the instant case. In Silva we cited Mandell v. Board of Com'rs of Bernalillo County, 44 N.M. 109, 99 P.2d 108, and said:

'* * * It is well established in this jurisdiction that mere inconvenience resulting from the closing of a street does not give rise to a legal right in one so inconvenienced, when another reasonable, though perhaps not equally accessible, means of access to the main street system remains. * * *'

And in conclusion stated:

'We think the better rule, and the weight of the more recent decisions, is that one whose property abuts upon a road or highway, a part of which is closed or vacated, has no special damage if his lands do not abut upon the closed portion thereof, if there remains a reasonable access to the main highway system. * * *'

It is acknowledged that in the Silva case the limited access highway was completely new, and the landowners were left on the same pavement as they were before the construction. This difference will be treated later in the opinion.

This court considered another case involving the creation of a limited access highway in 1963. State ex rel. State Highway Commission v. Lavasek, 73 N.M. 33, 385 P.2d 361, in which the old road was completely removed. The state condemned additional property and built a four-lane through highway. It also constructed a frontage road which abutted the landowners' property at one point. The frontage road required the landowners to travel about 700 feet west on it to join the westbound through lanes. They had to travel about 2100 feet and through an interchange to join eastbound traffic on the through lanes. Before construction, they had direct access to both directions of travel. This court held that the landowners could not receive compensation for the change in their access and stated:

'If the highway had been built on a new location without regard to its distance from the old highway on which the abutter's property is located, that would have amounted only to diversion of traffic and would have been noncompensable even though it resulted in a complete loss of the business which the abutter had formerly enjoyed. * * * If a new controlled-access highway is located on the right-of-way of the old conventional highway where the moving traffic would, except for traffic restrictions, have direct and easy ingress and egress from the highway to the abutter's property, the state may, nevertheless, restrict the entrance and exit of the traveling public if such restriction appears reasonable as an exercise of its police power to regulate traffic, * * *; and the state, in the exercise of its power to construct highways and control traffic, is not liable for loss of trade to abutting landowners as a result of the exercise of its police power. * * *'

In ...