State v. Fox, 34327
| Decision Date | 04 December 1958 |
| Docket Number | No. 34327,34327 |
| Parties | The STATE of Washington, Appellant, v. Helene M. FOX ex al.; C. K. Burress and Maude M. Burress, his wife; Marshall G. Burress and Lois Burress, his wife, Respondents. |
| Court | Washington Supreme Court |
John J. O'Connell, Edward E. Level, Lawrence D. Silvernale, Olympia, for appellant.
Ries & Kenison, Moses Lake, for respondents.
The state of Washington appeals from a judgment entered after a jury verdict determining the amount of award to be paid respondents in an action of eminent domain.
Respondents own 18.86 acres of vacant land in the town of Westlake, Grant county, Washington. It abuts primary state highway No. 18 (U. S. 10) on the south for a distance of 1,652 feet.
Respondents state in their brief that a public hearing was held on April 14, 1955, after due notice to property owners, as provided by RCW 47.52.072, a portion of the 'Limited Access Facilities' statute. July 26, 1955, the Washington state highway commission entered an order (a) establishing primary state highway No. 18, from Burke Junction to Moses Lake, as a limited-access highway; and (b), inter alia, approving new construction and access plans as they affected respondents' land. The record is silent whether there was any review of this order as provided in RCW 47.52.075.
November 28, 1956, the state filed its petition and notice in condemnation. December 14, 1956, pursuant to notice, the court entered an order adjudicating public use and necessity.
At the trial to determine the amount of respondents' award, the state introduced in evidence three large drawings that depict the effect the limited-access highway will have on respondents' land, and a large model (two by eight feet) that shows the existing highway in front of respondents' property and, by means of an 'overlay,' illustrates most graphically the four-lane highway, the land-service roads, and the 'clover leaf' or 'traffic interchange' that will be installed a short distance to the west of respondents' property.
Specifically, the plans disclose (1) that the state proposes to take a strip of respondents' land that abuts the existing highway at the northwest corner of the tract, that varies in width from ten to thirty feet, that is four hundred thirty-five feet long, and that has an approximate area of two tenths of an acre; (2) that respondents' right of access, light, view, and air to and from primary state highway No. 18 will be restricted, but respondents will have access to a two-way frontage service road to be constructed along the west three hundred thirty-five feet of their highway frontage. This east-west, two-way front-age road will lead to the east-west, four- lane, limited-access highway that will extend along the north boundary of respondents' property. It is apparent from the plans that respondents will not be able to leave their property and immediately make a left turn into the westbound traffic lanes of the four-lane limited-access highway, because a median strip is to be installed between the east and west lanes of traffic.
Respondents' right to compensation springs from (1) the loss of the strip of land, four hundred thirty-five feet long, containing approximately two tenths of an acre; (2) the prohibition of ingress and egress to and from the highway of the east one thousand three hundred seventeen feet of their property; and (3) damages, if any, suffered by reason of the change of method of ingress and egress of the west three hundred thirty-five feet of respondents' highway frontage.
The state's assignments of error fall into four categories: (1) The court erred when it admitted testimony that referred to the traffic routes by which westbound vehicular traffic on primary state highway No. 18 would reach and return from respondents' property to the through lanes of traffic. (2) The court erred when it admitted testimony that concerned loss of value to the remainder of respondents' property, due to the construction of a median strip that prohibited left-hand turns on the highway in front of respondents' property. (3) The court erred when it submitted to the jury instruction No. 11, which advised that the change of routes of ingress and egress to the east and west lanes of traffic on the four-lane highway could be considered an element of damages in fixing respondents' award. (4) The court erred when it refused to give certain of the state's requested instructions concerning restriction of ingress and egress arising from the state's exercise of the police power.
The state's assignments of error must necessarily rest upon the proposition that, concurrent with a compensable taking in a condemnation proceeding, the state may validly exercise the police power for traffic control and public safety, for which there can be no compensation, even though it affects the method of ingress and egress.
The crux of respondents' argument is: The state cannot extract one feature of an overall plan and label it an exercise of the police power in order to reduce the compensation payable to the property owner in a condemnation proceeding.
In State v. Ward, 1953, 41 Wash.2d 794, 796, 252 P.2d 279, 280, this court stated:
'The limited access feature of the highway must, therefore, be presented to the jury together with all other features of the proposed construction such as service roads, to enable it to properly assess all the elements of damage and special benefit that will result therefrom.'
Since the maps and models illustrate in detail the traffic routes by which westbound vehicular traffic would reach respondents' remaining property and return from the...
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