State ex rel. State Highway Commission v. Meier

• Decision Date: 08 March 1965
• Docket Number: No. 50290,50290
• Citation: 388 S.W.2d 855
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. Regina MEIER et al., Exceptions of Annie Pitti, Defendant-Respondent.
• Court: Missouri Supreme Court

Page 855

388 S.W.2d 855

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. Regina MEIER et al., Exceptions of Annie Pitti, Defendant-Respondent.

No. 50290.

Supreme Court of Missouri, En Banc.

March 8, 1965.

Rehearing Denied April 12, 1965.

Robert L. Hyder, Jefferson City, Samuel C. Ebling, Robert C. Finot, Kirkwood, Wilkie Cunnyngham, Jefferson City, for appellant.

Nathan B. Kaufman, St. Louis, Guilfoil, Caruthers, Symington, Montrey & Petzall, by John P. Montrey, St. Louis, for respondents.

PER CURIAM.

The following opinion, written as a dissenting opinion in Division Number One by Dalton, J., is, with some deletions and additions, adopted as the opinion of the Court en Banc.

Respondent had judgment for $57,500.00 which was more than $30,000.00 in excess of the highest damages conceded by appellant so that jurisdiction is in this court.

Respondent accepted the statement of facts as set forth in appellant's brief, hence we take the facts from that statement. Respondent owned 1.0718 acres of land fronting 293 feet more or less on the west side of Highway 67 by an average depth of 150 feet on which she operated a motel. By condemnation appellant acquired for highway right-of-way purposes a tract of land approximately 30 feet wide along the entire frontage of this property, containing .222 acres, and also a temporary construction easement containing approximately .097 acres. After the condemnation, the right-of-way for the highway was 300 feet wide in front of respondent's property. The right-of-way has been improved with two 'limited access' 2-lane throughways in the center portion of the right-of-way and two paved outer roadways on the outer edges of the right-of-way. Each of the outer roads are dual-lane trafficways so that traffic may move in either direction to designated entrances into the throughways. Prior to the improvement respondent had two driveways from her property on to Highway 67, which was then a 2-lane highway, and travelers could enter her property therefrom and on leaving respondent's property they could proceed in either direction. Appellant, however, did not condemn nor take from respondent the right of ingress or egress from her remaining property to the 2-lane highway constructed upon the portion of the 300-foot highway right-of-way adjacent to her property and respondent, her customers and invitees may enter upon that 2-lane outer roadway from any point along the entire frontage of respondent's remaining property and she or they may proceed in either direction north or south as before the condemnation took place and they may enter the throughways at the desingated places. Travelers may come to her property over the same routes. There is no limitation of access insofar as respondent's remaining property is concerned, but respondent and her invitees will not be able to enter upon the 'limited access' 2-lane throughways in the center of the 300-foot highway unless they go, as all other members of the traveling public must go, to the proper entrances which are available some distance north and south of respondent's motel.

An abutting owner's property right to 'access' is better described as the right of ingress and egress to and from his property and the abutting public highway. The right also includes the further right to connect with or reach the system of public highways, which right is also subject to reasonable restrictions under the police power of the State in protecting the public and facilitating traffic. The right does not include the right to travel in any particular direction from one's property or upon any particular part of the public highway right-of-way because, after one is upon the highway he has the same right as all other travelers and the right of travel is a public right and controlled by the police power of the State. Nor does the right of ingress or egress to or from one's property include any right in and to the existing public traffic on the highway, or any right to have such traffic pass by one's abutting property. The reason is that all traffic on public highways in controlled by the police power of the State, and what the police power may give an abutting property owner in the way of traffic on the highway it may take away, and by any such diversion of traffic the State and any of its agencies are not liable for any decrease of property values by reason of such diversion of traffic, because such damages are 'damnum absque injuria', or damage without legal injury. The trial court, therefore, erred in admitting evidence of depreciation of the value of respondent's property by reason of the diversion of traffic and the so-called 'loss of access'.

While the petition in this case and the plans for the improvement may show that no abutting property owners shall have the right of direct access to the throughways, except as shown on the plans, this prohibition applies with equal force to all members of the general traveling public and the statement is a declaration under the police power of the State as granted to the State Highway Commission by the Constitution of Missouri 1945, Art. IV, Sec. 29, V.A.M.S. Damages caused thereby are damages without legal injury and are not recoverable. Therefore, as far as respondent and her property rights are concerned she has the same right of ingress and egress from her remaining property to the highway right-of-way that existed before, but after she or her invitees enter upon the adjacent right-of-way of the highway, they are subject to the same regulations, inconveniences and controls that govern all other members of the traveling public. They must go to the established entrances to get on the throughways. The 'limited access' in this case is, therefore, only the limitation of access as applied to the throughways. That limitation is imposed by the State Highway Commission under the police power of the State and that regulation applies to respondent and her invitees just like it does to everyone else using the highway. If it causes damage and inconvenience, it is a common inconvenience applicable to all.

Respondent, as an abutting property owner on a public highway, does not now have and has never had any other property interest in the public highway other than a reasonable right of ingress and egress, as stated. Respondent has never had a property right in the traffic, great or small, on the highway, nor a right to recover damages for a decrease in value of her premises by reason of the diversion of traffic away from her property, nor has she had a property right to have the same amount of traffic pass her property as before or to have it move in the same direction. Respondent's property right of access has never extended further than the right to enter upon the highway or to leave it and have reasonable connection to the public road system. Once upon the highway, the police power of the State controlled and respondent and her invitees were subject to the 'Rules of the Road' as established by statute under the police power of the State (Ch. 304, Traffic Regulations RSMo 1959, V.A.M.S.) and now, as may be determined by the State Highway Commission under constitutional authority. No one has a right to drive on any part of the road he may want to or the way he wants to. These Rules of the Road and all such police power regulations apply to respondent and her invitees in common with all other members of the public and she may not collect damages for common inconveniences that she may suffer along with all other members of the public, nor for damages resulting from the exercise of the police power of the State.

While this Court may not have previously ruled a case exactly like this one, nevertheless, we think the general issues have been settled by many appellate court decisions, the most recent of which we find to be Filger v. State Highway Commission, decided by the Kansas City Court of Appeals, February 5, 1962, and reported in 355 S.W.2d 425. This opinion is in conformity to the law of this State as previously declared, and it further represents sound public policy, as previously recognized. In that case the owners of a tract of land abutting upon the highway had sued for damages allegedly suffered through alterations of the traffic pattern on the existing highway. The Court of Appeals, in an opinion by Maughmer, C., held that a diminution from 163 feet to 47 1/2 feet in the direct access of the abutting property to the main highway did not materially block or render physically impossible vehicular entrances and did not entitle the owner to an award of damages against the State Highway Commission, and it further held that traffic, great or small, is merely an incident to streets and highways and cannot be considered an element of damages or benefits. The opinion, while not citing many Missouri cases, cites numerous cases from other states which conform to the general law of Missouri and are not inconsistent with the law as previously declared by this Court.

A late decision by the Supreme Court of Arkansas in Arkansas State Highway Commission v. Bingham, 231 Ark. 934, 333 S.W.2d 728, is also in accord with such decisions of this Court as are available in Missouri at this time. The decision accords with sound public policy and many decisions support the conclusion there reached, to-wit, that, although the right of ingress and egress is a property right which is compensable in a condemnation action, yet, where the condemnee's remaining land was on an access road, there was no taking of such property right, even though the adjacent access road's nearest connection with the 'limited access highway' was more than a mile from condemnee's filling station. It was further held that...