Sullivan v. Marcello

• Decision Date: 04 November 1965
• Docket Number: No. 3211,3211
• Parties: Daniel L. SULLIVAN v. Angelo A. MARCELLO, Director of Public Works. Eq.
• Court: Rhode Island Supreme Court

Page 181

214 A.2d 181

100 R.I. 241

Daniel L. SULLIVAN v. Angelo A. MARCELLO, Director of Public Works.

Eq. No. 3211.

Supreme Court of Rhode Island.

Nov. 4, 1965.

Roberts & McMahon, William F. McMahon, Providence, for complainant.

J. Joseph Nugent, Atty. Gen., Joseph L. Breen, Chief Special Counsel, for respondent.

JOSLIN, Justice.

The complainant, the owner of a parcel of real estate fronting southerly on the George M. Cohan Memorial Boulevard, hereinafter referred to as the boulevard, brings this bill in equity against the respondent, the director of public works. He prays, insofar as here pertinent, either that the respondent be enjoined from taking the portion of the boulevard contiguous to his property and from obstructing his access to the north side and his use of the south side of the boulevard or, alternatively, that just compensation be awarded. After hearing on bill, answer and proof before a justice of the superior court, a decree was entered denying the prayers for injunctive relief and awarding the complainant compensation in the amount of $68,028. From that decree both parties have appealed to this court, the complainant's appeal being limited to the purpose of protecting his claim to injunctive relief in the event of an adverse determination on the question of damages.

Acting pursuant to and following the procedures fixed by G.L.1956, chap. 10 of title 24 and chap. 6 of title 37, respondent on or about January 28, 1964, filed in the office of the recorder of deeds of the city of Providence a description of certain real property and a plat thereof together with a statement setting forth that the property therein described was being condemned in fee simple for highway and freeway purposes. The boulevard, a municipal highway situated in the city of Providence, was included within the taking. It is divided by a median strip, runs in a generally easterly-westerly direction and is the most heavily traveled highway in the state. Vehicles traveling westerly on its northerly portion which is three lanes in width have a direct means of access to the gasoline service station situated on complainant's property. The operator of that station holds the property under a written lease which expires on June 30, 1969 and contains an option to renew or extend for an additional five-year term.

The condemnation was initiated in conjunction with the state's planned construction of a freeway which upon completion will form a part of route 195 of the interstate highway system. As presently proposed, the southerly portion of the boulevard will be included within the freeway bounds and that part of its northerly portion abutting complainant's property and extending westerly therefrom to Brook street and easterly to East street, the distance between those streets being approximately 1,000 feet, will be converted into a frontage or service road which will be available for two-way traffic. The portion of the freeway adjacent to the frontage road will be below its grade and between the two will be a retaining wall. Upon completion of the project, complainant's property, although it will still abut on and have access to such portion of the boulevard as will then be included within the frontage road, will not be accessible to the many thousands of vehicles which each day will use the new express lanes except by way of a circuitous route which the trial justice described as a 'maze of streets' and reachable only 'by virtue of most diligent search combined with a considerable degree of good fortune in taking the right turns and having resort to the right ramp.' Concededly the enforced diversion of traffic from and inaccessibility to complainant's property will substantially lessen its market value.

The point originally briefed and argued by the parties is whether an enforced substitution of a right of access to a frontage road for an existing direct means of ingress and egress to and from heavily traveled through-traffic lanes constitutes a taking requiring compensation within the contemplation of the constitution.

The complainant goes to the issue tangentially and relying principally on Johnston v. Old Colony R.R., 18 R.I. 642, 29 A. 594, Gill v. Town Council, 47 R.I. 425, 133 A. 806, Newman v. Mayor of Newport, 73 R.I. 385, 57 A.2d 180, and Wolfe v. City of Providence, 77 R.I. 192, 74 A.2d 843, contends in substance that his existing right of access is a property right entitling him to the use of the boulevard from end to end and from side to side, and that respondent cannot, without compensating him therefor, materially interfere with that right or take it from him.

While there is language in those decisions which seems to lend support to complainant's contentions, the contexts in which they came to the court were dissimilar from that in which this case comes to us. What we here consider is a taking for the purpose of constructing a high-speed, multilaned, limited-access freeway coupled with an imposed replacement of frontage road for main highway access. For that reason, if for no other, the side-to-side and end-to-end principles voiced in those decisions are inapposite unless, of course, the ultimate issues there decided can be related to the question now before us. That, however, is not the case because the court in those cases was passing on questions having no relevance to the issue here in dispute. Thus in Johnston v. Old Colony R.R., supra, we held that a real estate owner who purchased in reliance upon a duly-recorded plat showing a highway open to its full length was entitled to compensation when a railroad, acting under a statutory right, closed up one end of the street thereby creating a cul-de-sac; in Gill v. Town Council, supra, it was determined that an abutter was possessed of a special right to have the highway kept open to its full width, but the circumstances there were that the commissioners charged with marking out the boundaries of an existing highway reduced its width from sixty-six to sixty feet; and in Newman v. Mayor of Newport, supra, and Wolfe v. City of Providence, supra, the court insofar as it may have referred to those doctrines did not rely on them and was concerned in the former with the authority of the municipality to deny an abutter curb-cut permits for necessary approaches to a contemplated gasoline filling station, and in the latter with whether a municipality, acting pursuant to a statutory power to regulate traffic on certain public highways, was empowered to barricade the entrance to the abutter's property to such an extent as to make ingress and egress inconvenient if not impossible.

When those decisions are viewed as we have said they should be, the statement, 'As abutters they are entitled to a special right to have the whole highway open,' Gill v. Town Council, supra, 47 R.I., at p. 431, 133 A., at p. 808, while perhaps contextually apposite to the factual considerations then before the court, is not authoritative on the question of whether a deprivation of or interference with access to a main arterial highway caused by a substitution of a similar right in a frontage road constitutes a taking.

Moreover, there is no merit in complainant's argument that his ownership of the underlying fee to the middle line of the boulevard gives to his right of access the significance for which he contends. In advancing that contention, he misconceives the nature of a right of access which is nothing more than an easement appurtenant to abutting land, Wolfe v. City of Providence, supra, 77 R.I., at p. 201, 74 A.2d 843, Covey, 'Frontage Roads: To Compensate Or Not To Compensate,' 56 Nw.U.L.Rev. 587, 592, and exists irrespective of whether the fee to the highway to its middle line is in the abutter or the public. Kelbro, Inc. v. Myrick, 113 Vt. 64, 30 A.2d 527; Lane v. San Diego Elec. Ry., 208 Cal. 29, 280 P. 109; Kane v. New York Elevated R.R., 125 N.Y. 164, 26 N.E. 278, 11 L.R.A. 640; Current v. Stevenson, 173 Tenn. 250, 116 S.W.2d 1026.

We conclude that neither complainant's right of access to the boulevard nor any title he may have to the underlying fee thereof to its middle line will support his contention that he is entitled to have it kept open from side to side and from end to end. If he is to be granted equitable relief or compensation, it must be for some other reason.

The respondent, in addition to countering complainant's contentions, places primary emphasis not on real property right of access concepts as did complainant, but rather on the frontage road problem which came to the fore coincident with the postwar large-scale construction of access-free interstate and local highway systems. He considers this a case of first impression in this state and argues that complainant does not have an eminent domain action notwithstanding the economic disadvantages which will be caused him by the proposed changes in the existing highway pattern. The complainant's damage, he says, is damnum absque injuria resulting from a legitimate regulation of traffic by the state under its police power and he contends that complainant's resulting economic losses while greater in degree are in kind no different from those which will be sustained by other highway users. Any damage caused complainant because of the imposed substitutive access to the service road he equates with the noncompensable losses which follow the establishment of one-way streets and median strips, or the elimination of left and right turns, or the imposition of restrictions as to vehicle weight and speed, and he contends that complainant has no vested right to a continuation of the boulevard in its existing form. His theory in substance is that any diminution in the value of abutting property caused by its placement on the proposed frontage road is attributable solely to a diversion of traffic and the inconvenience resulting from traveling a circuitous route. Damages so caused he argues are noncompensable. He finds...