State v. Calkins, No. 33980

CourtUnited States State Supreme Court of Washington
Writing for the CourtFINLEY; HILL, C. J., and OTT; MALLERY; WEAVER
Citation50 Wn.2d 716,314 P.2d 449
PartiesThe STATE of Washington, Appellant, v. Edward CALKINS and Mae Calkins, his wife; M. E. Nelson Construction Company, a Washington Corporation; Russell Hansen Warehouse Company; W. Gale Matthews; John A. Reard and Mildred E. Reard, his wife; Albert R. Drittenbass and Florence Drittenbass, his wife; Robert E. Polachek and Mary M. Polachek, his wife; Clyde Dazell; A. W. Dazell; Grant County; and Elmer Olson, Respondents.
Docket NumberNo. 33980
Decision Date15 August 1957

Page 716

50 Wn.2d 716
314 P.2d 449
The STATE of Washington, Appellant,
v.
Edward CALKINS and Mae Calkins, his wife; M. E. Nelson
Construction Company, a Washington Corporation; Russell
Hansen Warehouse Company; W. Gale Matthews; John A. Reard
and Mildred E. Reard, his wife; Albert R. Drittenbass and
Florence Drittenbass, his wife; Robert E. Polachek and Mary
M. Polachek, his wife; Clyde Dazell; A. W. Dazell; Grant
County; and Elmer Olson, Respondents.
No. 33980.
Supreme Court of Washington, Department 1.
Aug. 15, 1957.

Don Eastvold,

Page 717

Paul Sinnitt, Newell Smith, Olympia, John J. O'Connell, Atty. Gen., for appellant.

[314 P.2d 450] Michael R. Donovan, William Clapp, Ephrata, for respondents.

FINLEY, Justice.

This is an eminent domain proceeding brought by the state of Washington to condemn and appropriate a right of way across the premises of the defendants, pursuant to RCW 8.04.010 et seq., for the purpose of constructing a new limited-access highway under the provisions of RCW 47.52.010 et seq. The proposed new limited-access highway (designated as part of secondary state highway No. 11-G) extends a distance of approximately five miles from Ephrata to secondary state highway No. 11-G, which connects Soap Lake and Moses Lake in Grant County.

Page 718

The land condemned is a part of the defendants' twenty-acre farm, which is rectangular or oblong in shape. The farm is bordered on the westerly side by a county road and on the northerly side by a city street, which marks the city limits of Ephrata. The right of way involved is sixteen hundred feet long and one hundred fifty feet wide. It diagonally bisects the defendants' farm and embraces a total of 4.42 acres. The defendants will be left with a 10.6-acre tract of land on the north side of the highway, and a 4.7-acre tract of land on the south side of the highway. The north tract will continue to be served by the city street. The tract to the south will continue to be served by the county road which will provide access to the new highway. Defendants will have one approach (twenty feet in width) from their property on each side of the highway for the restricted purpose of crossing the highway with farm machinery. The state introduced in evidence its complete plan for constructing the highway through the defendants' property. Testimony was taken relative to the nature of the highway project, the value of the land taken, and the severance damages to the land remaining in the north and south tracts. The estimates of total damages range, on behalf of the state, from $10,958 to $13,610; and on behalf of defendants, from $25,600 to $40,000. Much of this testimony was based upon the theory that the best and highest use of the farm acreage would be for subdivision purposes. The case was submitted to a jury, which returned a verdict of nineteen thousand dollars. The state has appealed.

The principal question raised is whether there has been a constitutional taking of an alleged easement of access to the highway.

It is well established that the owner of land abutting upon a conventional highway has an easement of ingress and egress. This has been treated as a property right, attached to the land. The courts unanimously hold that such an owner is entitled to just compensation if this easement or property right is taken or damaged. See Walker v. State, 48 Wash.2d 587, 295 P.2d 328, and cases cited; State, By and Through

Page 719

State Highway Comm. v. Burk, 200 Or. 211, 265 P.2d 783.

However, where a new limited-access highway is established by condemnation in an area where no highway previously existed, there is no taking of an easement of access, because such an easement has never in fact existed. State, By and Through State Highway Comm. v. Burk, supra; State ex rel. State Highway Comm. v. Clevenger, Mo., 291 S.W.2d 57; Carazalla v. State, 269 Wis. 593, 71 N.W.2d 276; Schnider v. State, 38 Cal.2d 439, 241 P.2d 1, 43 A.L.R.2d 1068; Annotation, 43 A.L.R.2d 1068. See, also, articles entitled: The Limited Access Highway, 27 Wash.L.Rev. 111; and 13 Mo.L.Rev. 29; Freeways, 3 Stanford L.Rev. 298. As to the foregoing proposition, we quote from an illustrative discussion in the Stanford Law Review, supra, as follows:

'Suppose the state buys up a completely new right-of-way for a freeway. Take the clearest case first. A's land abuts against B's land. Assume the public buys up a right-of-way for a freeway from B, extending along the boundary of his property with A, but leaving a one-foot wide strip of land along the boundary line. Obviously, [314 P.2d 451] there is no change in A's legal position. Now, suppose the state took B's land right up to the boundary with A. Why should A's rights suddenly change? The freeway was never intended, from its inception, to provide land service to A. Rather it was intended to be a traffic service road. The result must be that, since A never had a right of access across his property line before, and since no such right was even impliedly given to him by the state, he does not now have a right of access across his property line to the freeway.

'What of B's rights? Suppose a part of his land along his boundary line with A has been taken. B, of course, will be paid for the land actually taken. But should he also be paid for a right of access to the freeway? Again, a simple consideration of our rationale brings out the answer. The land service road concept is inapplicable. B was given no access to the public road. He therefore has acquired no right of access to be taken.' 3 Stanford Law Review 298, 307.

Thus, since the property owner has no easement, i. e., no right of access to the highway itself, it follows that an allowance of damages for the loss of such a nonexistent

Page 720

easement or right of access is unrealistic, unjustified in fact, and improper.

As a necessary corollary, there being no easement, property abutting a limited-access highway has no commercial or frontage value so long as the highway is a limited-access one. Carazalla v. State, supra.

There is, however, the important subsidiary, or closely related question of severance damage to the remaining land after a limited-access highway is constructed because, although severance damages are not dependent upon the existence of rights of access or an easement regarding such rights, the limited-access nature of the highway may cause a more significant or complete severance than the conventional highway. State, By and Through State Highway Comm. v. Burk, supra; State ex rel. State Highway Comm. v. Clevenger, supra. We quote again from the article in the Stanford Law Review, supra:

'As a final case, consider the situation where the right-of-way purchased runs right through B's land. In the case of a normal, unrestricted-access highway, B will be paid for the land actually taken and also 'severance' damage for the separation of the property. If the highway is to be of limited-access design, with B having no right of access, the severance of the two parcels will be more complete. B should be, and is, paid for this more complete severance, but this is on the basis of severance damage alone and not on any theory of right of access being denied.' 3 Stanford Law Review 298, 308.

The market value of the property remaining may be affected by the nature and the extent of the taking for the limited-access highway, the separation of a defendant's land into different tracts, and the added inconvenience, if any, in managing the property and in going from one tract to the other. Additional circumstances to be considered in assessing net compensation are: the presence of the new highway; the modes of access provided, if any; the presence of existing streets, roads and highways; and the reasonably probable uses of the remaining property in determining the question of special benefits, if any, to the defendants. But the severance damages must not be based upon any theory of a

Page 721

loss of access rights to the highway. State, By and Through State Highway Comm. v. Burk, supra; State ex rel. State Highway Comm. v. Clevenger, supra.

We find no material difference between the statutes of this state and those enacted in the states wherein the courts have upheld the validity and effect of limited-access legislation, as indicated by the authorities cited hereing.

The legislature of the state of Washington enacted the limited-access highway code in 1947, which is now designated as [314 P.2d 452] RCW 47.52. The pertinent statutes provide, in part, as follows:

'47.52.001 Declaration of policy. Unrestricted access to and from public highways has resulted in congestion and peril for the traveler. It has caused undue slowing of all traffic in...

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40 practice notes
  • St. Clair County v. Bukacek, 7 Div. 447
    • United States
    • Supreme Court of Alabama
    • March 23, 1961
    ...210 P.2d 717; State, By and Through State Highway Commission v. Burk, 200 Or. 211, 265 P.2d 783, 794; State v. Calkins, 50 Wash.2d 716, 314 P.2d 449; State ex rel. Rich v. Fonburg, 80 Idaho 269, 328 P.2d 60; State ex rel. State Highway Commission v. Clevenger, 365 Mo. 970, 291 S.W.2d 57. Bu......
  • Riddle v. State Highway Commission, No. 41235
    • United States
    • United States State Supreme Court of Kansas
    • May 16, 1959
    ...200 Or. 211, 265 P.2d 783; Carazalla v. State, 269 Wis. 593, 608a, 70 N.W.2d 208, 71 N.W.2d 276; State v. Calkins, 50 Wash.2d 716, 719, 314 P.2d 449). See, also, articles entitled: The Limited Access Highway, 27 Wish.L.Rev. 111; 13 Mo.L.Rev. 29; Freeways, 3 Stanford L.Rev. The legislature h......
  • Brock v. State Highway Commission, No. 44029
    • United States
    • United States State Supreme Court of Kansas
    • August 19, 1965
    ...200 Or. 211, 265 P.2d 783; Carazalla v. State, 269 Wis. 593, 608a, 70 N.W.2d 208, 71 N.W.2d 276; State v. Calkins, 50 Wash.2d 716, 719, 314 P.2d 449. See, also, articles entitled: The Limited Access Highway, 27 Wash.L.Rev. 111; 13 Mo.L.Rev. 29; Freeways, 3 Stanford L.Rev. 298; Institute on ......
  • Deaconess Hospital v. Washington State Highway Commission, No. 37673
    • United States
    • United States State Supreme Court of Washington
    • June 7, 1965
    ...street, subject to the owner's constitutional right to just compensation for loss of ingress and egress. State v. Calkins, 50 Wash.2d 716, 314 P.2d 449 (1957). It follows, then, that, unless the abutting owner will lose or suffer substantial loss of ingress or egress to an existing street, ......
  • Request a trial to view additional results
40 cases
  • St. Clair County v. Bukacek, 7 Div. 447
    • United States
    • Supreme Court of Alabama
    • March 23, 1961
    ...210 P.2d 717; State, By and Through State Highway Commission v. Burk, 200 Or. 211, 265 P.2d 783, 794; State v. Calkins, 50 Wash.2d 716, 314 P.2d 449; State ex rel. Rich v. Fonburg, 80 Idaho 269, 328 P.2d 60; State ex rel. State Highway Commission v. Clevenger, 365 Mo. 970, 291 S.W.2d 57. Bu......
  • Riddle v. State Highway Commission, No. 41235
    • United States
    • United States State Supreme Court of Kansas
    • May 16, 1959
    ...200 Or. 211, 265 P.2d 783; Carazalla v. State, 269 Wis. 593, 608a, 70 N.W.2d 208, 71 N.W.2d 276; State v. Calkins, 50 Wash.2d 716, 719, 314 P.2d 449). See, also, articles entitled: The Limited Access Highway, 27 Wish.L.Rev. 111; 13 Mo.L.Rev. 29; Freeways, 3 Stanford L.Rev. The legislature h......
  • Brock v. State Highway Commission, No. 44029
    • United States
    • United States State Supreme Court of Kansas
    • August 19, 1965
    ...200 Or. 211, 265 P.2d 783; Carazalla v. State, 269 Wis. 593, 608a, 70 N.W.2d 208, 71 N.W.2d 276; State v. Calkins, 50 Wash.2d 716, 719, 314 P.2d 449. See, also, articles entitled: The Limited Access Highway, 27 Wash.L.Rev. 111; 13 Mo.L.Rev. 29; Freeways, 3 Stanford L.Rev. 298; Institute on ......
  • Deaconess Hospital v. Washington State Highway Commission, No. 37673
    • United States
    • United States State Supreme Court of Washington
    • June 7, 1965
    ...street, subject to the owner's constitutional right to just compensation for loss of ingress and egress. State v. Calkins, 50 Wash.2d 716, 314 P.2d 449 (1957). It follows, then, that, unless the abutting owner will lose or suffer substantial loss of ingress or egress to an existing street, ......
  • Request a trial to view additional results

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