State ex rel. State Highway Commission v. Brockfeld

• Decision Date: 08 March 1965
• Docket Number: No. 50883,50883
• Citation: 388 S.W.2d 862
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. G. A. BROCKFELD et al., Exceptions to the Award of George F. Mohr, Genevieve B. Mohr, John G. Speed, Trustee, Alberta E. Denny, Sinclair Refining Company, a corporation, Noah C. Hase, Irene Hase, People's Bank of Hawk Point, a corporation, William Sands and Fern Sands, Defendants-Respondents.
• Court: Missouri Supreme Court

Page 862

388 S.W.2d 862

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. G. A. BROCKFELD et al., Exceptions to the Award of George F Mohr, Genevieve B. Mohr, John G. Speed, Trustee, Alberta E Denny, Sinclair Refining Company, a corporation, Noah C Hase, Irene Hase, People's Bank of Hawk Point, a corporation, William Sands and Fern Sands, Defendants-Respondents.

No. 50883.

Supreme Court of Missouri, En Banc.

March 8, 1965.

Rehearing Denied April 12, 1965.

Robert L. Hyder, Bruce A. Ring, Jefferson City, for appellant.

Alvin Juergensmeyer, Warrenton, Wehrle & Wehrle, Clayton, for respondents George F. Mohr and Genevieve B. Mohr.

HYDE, Judge.

This case, transferred from the St. Louis Court of Appeals, is a condemnation proceeding for right of way for the construction of Interstate Route 70. The facts are stated in opinion of the Court of Appeals 378 S.W.2d 254, to which reference is made for details.

The situation was that respondents Mohrs owned land (1.67 acres) abutting U. S. Highway 40, leased to respondent Sinclair Refining Company. Sinclair built a gasoline service station on it and leased it to respondent Sands. Route 40 had two separate concrete pavements; the north lane 18 feet wide provided two lanes for westbound traffic, the south lane 24 feet wide provided two lanes for eastbound traffic. There were two entrances from the eastbound traffic lanes of Route 40 to respondents' service station, one at the east end and one at the west end of their property. There was also a crossover between the separate traffic lanes of Route 40 near the western entrance to the service station.

Interstate 70 also is built with east and westbound through traffic lanes, using for its eastbound traffic lane the eastbound traffic lane of Highway 40 but resurfacing it, and constructing a new 24-foot westbound traffic lane on substantially the same location as the old 18 foot of Route 40. However, on each side of these through traffic lanes, an outer roadway, 20 feet wide, is constructed, on which traffic can proceed in both directions. Respondents had access from their property only to the south outer road, which went to interchanges at Warrenton on the west and at Wright City on the east, each about three miles distant. Traffic could only enter the Interstate 70 through traffic lanes at such interchanges and these were the ones nearest to respondents' property. A county road, making a grade crossing of Route 40, east of respondents' property, will cross Interstate 70 on an overpass but there no interchange is provided to go on to Interstate 70 from that road. The outer roadway is on the old right of way of Route 40 except for a small tract consisting of .036 acre at the northeast corner of respondents' land near the county road which was taken for the purpose of constructing part of the outer roadway toward the county road at the overpass.

The Court of Appeals thus stated respondents' contention: '[R]espondents are not claiming damages because they will not have direct access to Interstate 70 when completed. They do not claim they have any such right of access. Nor do they deny that the appellant has the right, in a proper proceedings, to destroy or impair their right of access to existing Highway 40. But they do contend that they had an easement of access to pre-existing U. S. 40 and that it was a property right which could not be taken from them by condemnation without just compensation.' This really amounts to a claim that the state cannot impose traffic regulations on any lanes of existing highways which change direction of travel and places of entry on such lanes, regardless of means of access provided for abutting landowners, without payment of compensation to them for change in the kind of access they had. This claim is unsound.

Decisions of the courts are conflicting on the nature of an abutter's right of access, the nature of the loss suffered, the nature of a frontage road in a limited access highway and the right of an abutter to be compensated for the loss of direct access to main highway traffic lanes. It is said: 'The decisions of the courts seem to fall in three major categories:

'(1) That any loss which results from being placed upon a frontage road is not to be compensated in eminent domain, whether land is taken or not.

'(2) That any loss resulting from being placed on a frontage road should be compensated, but the frontage road should be considered in mitigation.

'(3) That any loss resulting from being placed upon a frontage road should be compensated only when accompanied by a taking of land and that the existence of a frontage road should be considered in mitigation.' State of New Mexico ex rel. State Highway Comm. v. Danfelser, 72 N.M. 361, 384 P.2d 241, 244; Stefan Auto Body v State Highway Commission, 21 Wis.2d 363, 124 N.W.2d 319, 322, both of which held there should be no compensation where a frontage road provided access. See also Arkansas State Highway Commission v. Bingham, 231 Ark. 934, 333 S.W.2d 728; Langley Shopping Center v. State Roads Commission of Maryland, 213 Md. 230, 131 A.2d 690; Muse v. Mississippi State Highway Commission, 233 Miss. 694, 103 So.2d 839; State of New Mexico ex rel. State Highway Comm. v. Lavasek, 73 N.M. 33, 385 P.2d 361; Selig v. State of New York, 10 N.Y.2d 34, 217 N.Y.S.2d 33, 176 N.E.2d 59; Darnall v. State of South Dakota, 79 S.D. 59, 108 N.W.2d 201; Nelson v. State Highway Board, 110 Vt. 44, 1 A.2d 689, 118 A.L.R. 915.

As stated in Pennysavers Oil Co. v. State of Texas, (Tex.Civ.App.) 334 S.W.2d 546, 548-549, where freeway lanes were built east of the old highway on which plaintiff's service station was located reducing it to a frontage road: 'The State has the right under the provisions of Art. 6674w, supra, and its police power, to provide for one-way traffic, no U turns, division barriers, no left or right turns, traffic lanes, speeding and parking regulations, circuitous routes; for the changing of highways generally, and is not responsible for loss of trade to abutting landowners as a result of the exercise of this police power, so long as it does not amount to a complete taking of the right of access. * * * If the State had decided to build this Freeway a block or a mile from appellant's property, it would likewise have lost its trade, but no abutting property owner has a vested interest in the traffic that passes in front of his property, and if this traffic is diverted by the State building a road at another place, and the traveling public prefer to travel the new road and abandon the old road, the State cannot be held liable for any loss of trade suffered by an abutting landowner on the old abandoned road.' See also Holbrook v. State of Texas (Tex.Civ.App.), 355 S.W.2d 235; State of Texas v. Baker Bros. Nursery (Tex.Sup.), 366 S.W.2d 212.

Of course, a complete blocking of an abutter's access takes from him a property right in the nature of an easement and this requires resort to eminent domain. However, ingress and egress to a particular lane of a highway and direction of travel thereon can be regulated under the police power of the state for public safety and general welfare, without compensation to an abutter who is furnished unrestricted right of access to a lane of the highway upon which his property abuts and which connects with the restricted lanes at designated points. (See discussion in the following Law Review articles: 13 Mo.Law Review 19 (1948); 3 Stanford Law Review 298, 304 (1951); 27 Washington Law Review 111, 123 (1952); 43 Iowa Law Review 258, 265 (1958); 38 Nebraska Law Review 407, 423 (1959); 11 Baylor Law Review 149 (1959); 56 Northwestern Law Review 587, 603 (1961). In this case, respondents have been furnished unrestricted access to a lane of the highway, an outer road on its right of way, along the entire front of their property. Therefore, any compensation resulting from this situation would have to be for circuity of travel rather than for loss of access to the highway.

Cases contrary to this conclusion are cited and discussed in the opinion of the Court of Appeals but as the court recognized there has been no previous opinion in accord with them in this state. A more recent case now cited as Hendrickson v. State of Minnesota, 267 Minn. 436, 127 N.W.2d 165, brought on the theory of 'inverse condemnation,' in which no land of the plaintiffs was taken and the old highway, a single two-way traffic pavement, was left as it was but designated an outer service lane. Two new traffic lanes were built on the opposite side of the old pavement from plaintiffs' property, one for southbound traffic and one for northbound traffic. The court held plaintiffs had a right to reasonably convenient access to the main thoroughfare and would be entitled to damages for its substantial impairment. An award of damages, in this situation, is contrary to long settled Missouri law as well as respondents' theory of this case, which the Court of Appeals recognized by saying: 'If Old 40 Highway had become the outer road, then respondents would not be damaged by loss of access for the reason that their access would not be disturbed.' For a case so holding see State ex rel. Merritt v. Linzell, 163 Ohio St. 97, 126 N.E.2d 53. Hill-Behan Lumber Co. v. State Highway Commission, 347 Mo. 671, 148 S.W.2d 499, was an action for consequential damages for impairment of plaintiff's means of ingress and egress by building a viaduct in a public street. Plaintiff's property abutted on the street and no part of it was taken but plaintiff's access to and from the viaduct was by ramps. We held that, in the absence of an authorizing statute, consequential damages could not be recovered from the state and pointed out that such statutes existed only as to cities. (In the Hendrickson case, the court did find legislative intent to compensate owners in the situation therein involved, 127 N.W.2d l.c. 169, footnote 1.)...