Stefan Auto Body v. State Highway Commission

• Decision Date: 01 November 1963
• Citation: 124 N.W.2d 319,21 Wis.2d 363
• Parties: STEFAN AUTO BODY, Plaintiff-Appellant, v. STATE HIGHWAY COMMISSION of Wisconsin, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 319

124 N.W.2d 319

21 Wis.2d 363

STEFAN AUTO BODY, Plaintiff-Appellant, v. STATE HIGHWAY COMMISSION of Wisconsin, Defendant-Respondent.

Supreme Court of Wisconsin.

Nov. 1, 1963.

Clayton A. Cramer, Waukesha, for appellant.

George Thompson, Atty. Gen., A. J. Feifarek, Asst. Atty. Gen., Madison, for respondent.

HALLOWS, Justice.

This case presents the issue of whether an abutting-property owner is entitled to compensation when direct access to the highway which becomes an access-free highway is replaced by a cul-de-sac frontage road which affords access at interchanges. The defendant argues such damage is not compensable because it results from a reasonable exercise of the police power in establishing the highway as a part of the national system of interstate highways. The plaintiff's position on this appeal is that the cul-de-sac does not give it reasonable access to the express lanes of the highway and the loss of direct access results in a 'taking' of its property in a constitutional sense, for which compensation must be paid.

Preliminarily, the plaintiff additionally argues the question of reasonable access is an issue of a material fact which defeats the motion for summary judgment. In some cases this may be so, ¹ but we think not in this case because, in view of the nature of the damages complained of, any access less than direct access will cause the plaintiff some damage. The question is not the amount of damage but whether any damage suffered by the plaintiff by being placed on the frontage road is compensable. This is a question of law and depends upon the nature and the scope of the right of access. If the plaintiff as an abutting-property owner has a right of direct access to the highway and to the flow of traffic thereon so the traveling public may enter and leave the plaintiff's place of business directly from the public highway and the right includes the right to profit from the highest or current use of the property, then we would have a remaining fact-question of the amount of damages for the taking.

In considering the nature of the abutter's right of access, the nature of loss suffered, and the nature of a frontage road involved in the problem of whether a frontage-road abutter should be compensated for the loss of direct access to a freeway, the courts have come to three different conclusions: (a) Any loss should be compensated and the existence of the frontage road considered in mitigation of the loss, (b) the loss should be compensated only when accompanied by a taking of the land by eminent domain, and (c) any loss resulting from being placed on the frontage road should not be compensated. ² Those states which deny relief reason the right of access is not absolute and not restricted to direct ingress and egress and the provision for indirect access to a highway by means of frontage roads is a valid exercise of the police power. ³ States which allow damages for being placed on a frontage road do so on the theory the right of access is a property right of direct access to the road including all the benefits which such proximity involves and when these benefits are impaired because the direct access is converted into an indirect access, there is a taking or damaging which requires compensation. ⁴ It would seem from the few authorities a cul de sac frontage road is more likely to be considered an unreasonable substitute than a frontage road which connects with two interchanges. ⁵

The conflict in the decisions ultimately rests in the different views of the nature of the right of access or what constitutes a reasonable exercise of the police power. All decisions recognize a complete denial of access to an existing road is compensable, and it is generally recognized the state under its police power may indirectly affect the abutting property by such controls as the establishment of one-way streets or lanes of traffic, median strips, elimination of cross-overs, restrictions on U-turns, left and right turns, and weight and speed restrictions. ⁶ While these limitations or restrictions may result in a diversion of traffic or in a circuity of travel, any damaging effect to abutting property is incidental. Such restrictions affect all members of the public on the highway and are primarily imposed in reference to traffic and not as a limitation on the full use of a right of access. From this premise some courts have reasoned the right of access does not include any right to the maintenance or the continuance of the flow of traffic past the abutting property and the diversion of traffic is not a taking of a property right. ⁷

It is true the line between police power and condemnation has not been and perhaps cannot be sharply drawn. The problem is really one of degree. In both, damages may result but if the damage is such as to be suffered by many similarly situated and is in the nature of a restriction on the use to which land may be put and ought to be borne by the individual as a member of society for the good of the public safety, health or general welfare, it is said to be a reasonable exercise of the police power, but if the damage is so great to the individual that he ought not to bear it under contemporary standards, then courts are inclined to treat it as a 'taking' of the property or an unreasonable exercise of the police power. See State v. Herwig (1962), 17 Wis.2d 442, 117 N.W.2d 335. 'The law recognizes that the owner of property, even though it be situated upon a public street, has a right of ingress and egress to and from his premises. However, this right is in common with most other rights subject to reasonable regulations in the public interest and for the promotion of public convenience and safety. The difficulty arises when an attempt is made to determine what is reasonable and what is unreasonable.' City of Neenah v. Krueger (1932), 206 Wis. 473, 240 N.W. 402.

The right of access or of ingress or egress of an abutting property owner to a public road or street is a property right not separate in itself but incidental to and a part of the ownership of the land and is subject to the superior rights of the traveling public upon the highway and of the state to control that traffic for the common good. In early times, local roads were constructed for the improvement of property and in many instances the land was dedicated for such purpose and the road was paid for by local real estate taxes or by special assessments. The concept of access rights in that context was not greatly influenced by the needs of the public generally which might clash with an unrestricted use of the property in relation to the abutting street. Covey, supra; Clarke, Limited-Access Highways, 27 Wash.Law Rev., p. 115. But a more modern concept of the right of access restricts the scope and nature of the right in relation to the needs of contemporary society. Or, as it has been said, we cannot have changeless roads in a changing society. Darnall v. State, supra. Recent concepts of the function of highways have added to the local road and street concept limited-access highways, freeways and expressways because of the growth of automobile traffic and the public need for greater speed and safety. These roads are constructed to serve the today and future needs of the traveling public and the national-defense objects of the federal government rather than the local needs of abutting property owners. In Agnew v. Hotchkiss (1926), 189 Wis. 1, 206 N.W. 849, it is stated, "Highways are only to be laid out when the public good will thereby be promoted. * * *' The controlling factor must always be the good of the general public and not the convenience or financial gain of the people who live along any particular highway.' Highway 30 ran the course of being an uncontrolled-access state highway to a limited-access highway and now to an integral part of the national system of interstate highways or freeways sponsored and encouraged by the federal government and paid for to the extent of 90% by the federal government out of taxes assessed against the users of the public highways. The purpose of Interstate Highway 94 is not to serve the traveling public or abutters as a local road but to serve as a safe, efficient and speedy means of transporting traffic from one state to another. What the defendant did in constructing Interstate Highway 94 as a freeway was in the exercise of its police power expressly authorized by sec. 84.29, Stats.

It is argued by the defendant that as long as the plaintiff has access to the interstate highway by a system of public roads his right of access is not impaired unreasonably. This argument proceeds on the theory the abutting-property owner is merely entitled to some physical access to the public highway system. In this case that is true only to the extent to which the indirect access by the frontage road to the new or existing road is considered reasonable. However, the limited-right-of-way concept finds some basis in prior decisions of this court in what is called the circuity-of-travel doctrine. This idea was advanced in the early case of Chicago & N. W. Railway Co. v. Railroad Comm. (1918), 167 Wis. 185, 167 N.W. 266. That case involved the vacating of several streets in a city to eliminate at-grade crossings and the substitution therefor of an overhead crossing. The circuity of travel was not held to be a compensable item of damages. In Carazalla v. State, ⁸ which involved a taking of land for the construction of a new highway across the plaintiff's land leaving the old highway intact to which the plaintiff had access rights, we held no compensation should be paid because the abutter's access to the new highway was circuitous. In Nick v. State Highway Comm. (1961), 13 Wis.2d 511, p. 514, 109 N.W.2d 71, p. 72, which involved Highway 30 as a limited-controlled-access highway, we said, relying on a zoning case, ⁹ 'An impairment of the use of property by the exercise of police...