Triangle, Inc. v. State

• Decision Date: 04 September 1981
• Docket Number: No. 4811,4811
• Parties: TRIANGLE, INC., Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 965

632 P.2d 965

TRIANGLE, INC., Appellant, v. STATE of Alaska, Appellee.

No. 4811.

Supreme Court of Alaska.

Sept. 4, 1981.

John W. Colver, Warren C. Colver & Associates, Anchorage, for appellant.

William R. Satterberg, Jr., Asst. Atty. Gen., Fairbanks, Richard Kerns, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

Before RABINOWITZ, C. J., and CONNOR, BURKE, MATTHEWS and COMPTON, JJ.

OPINION

COMPTON, Justice.

This is an appeal from an eminent domain action. The principal issue raised is whether a lessee of real property is entitled to compensation for the state's elimination of direct access from the property to an abutting highway. Other issues raised on appeal include the proper measure of compensation for a lessee whose property is partially condemned when the lessee holds options to renew its lease, and the proper measure for attorney's fees, costs and pre-judgment interest in eminent domain actions.

As part of a project to widen and upgrade the Steese Highway in Fairbanks, Alaska, the state filed a complaint to condemn .079 acres of land abutting the highway, as well as any and all rights of direct access from the land to the highway. J & B, Inc., owner of the land, had leased its property to Triangle, Inc., appellant in this action. ¹ In November of 1974, the state filed a Declaration of Taking and deposited $950.00 as just compensation for the land. J & B, Inc. entered into a Stipulation of Settlement with the state and, thus, the trial of this action concerned only Triangle's interests in the property.

Upon motion for partial summary judgment by the state, the superior court ruled that Triangle was not entitled to any compensation for the elimination of its direct access to the Steese Highway. After a jury trial, the court entered judgment for Triangle in the sum of $1,679.21 as compensation for the taking of the .079 acres. ² Triangle was awarded partial attorney's fees and costs, as well as pre-judgment interest at the rate of six percent per annum.

On appeal, Triangle seeks to establish its right to compensation for the elimination of its direct access to the Steese Highway. The property it leases from J & B, Inc. is bounded on one side by the Steese Highway and on the other by Farmer's Loop Road. Before the state's project, Steese Highway was undivided. A driveway located on the property and used since 1962 provided direct access to both the highway and Farmer's Loop Road. Farmer's Loop Road connected with the highway approximately two-tenths of a mile south of the property.

After the project was completed, the Steese Highway was a divided, controlled-access highway. Farmer's Loop Road ended in a cul-de-sac where it had previously intersected the highway. In lieu of that intersection, a connector road between Farmer's Loop Road and the highway was constructed three-tenths of a mile north of the property. Thus, to travel from the Steese Highway to Triangle's business, customers must now enter the new connector road, proceed west two-tenths of a mile, turn left onto Famer's Loop Road and proceed south three-tenths of a mile and then turn into Triangle's driveway. The net increase in travel distance to the highway is approximately one-half of a mile.

I. ELIMINATION OF DIRECT ACCESS

The first issue we address is whether the increased and circuitous route from Triangle's property to the Steese Highway resulting from the state's project is so unreasonable as to constitute a taking or damaging of Triangle's property rights for which compensation must be paid. ³ All jurisdictions recognize that an owner of abutting land has a right of access to and from a public street or highway. ⁴ In Alaska, this incident of ownership is limited to a "right of reasonable access." B&G Meats, Inc. v. State, 601 P.2d 252, 254 (Alaska 1979) (emphasis added). This rule is in accord with that adopted by a majority of jurisdictions. Annot., 42 A.L.R.3d 13, 30-48 (1972) ("Abutting Owner's Right to Damages for Limitation of Access Caused by Conversion of Conventional Road into Limited Access Highway").

In B&G Meats, we set forth the principles controlling a claim of taking caused by a change in access to streets or highways:

"No hard and fast rule can be stated, but courts must weigh the relative interests of the public and the individual and strike a just balance so that government will not be unduly restricted in its function for the public safety, while at the same time, give due effect to the policy of eminent domain to insure the individual against an unreasonable loss occasioned by the exercise of the police power. The question depends upon the particular facts of the case. Obviously, if there is a total blocking of access, the restriction would be unreasonable and the abutter entitled to compensation. Where, however, the restriction does not substantially interfere with the abutter's ingress and egress or where 'frontage' or 'outer roadways' reasonably provide access the abutter is not entitled to compensation. While an abutter has the right of access to the public highway system, it does not follow that he has a direct-access right to the main traveled portion thereof; circuity of travel, so long as it is not unreasonable, is non-compensable. Likewise, loss of business occasioned by the diversion of traffic is non-compensable."

601 P.2d at 254, quoting Ray v. State Highway Commission, 196 Kan. 13, 410 P.2d 278, 288-89 (1966) (concurring opinion of Fatzer, J.) (citations omitted) (emphasis in original).

The state and Triangle refer us to a multitude of decisions from other jurisdictions, ⁵ but none add to this rule or persuade us that it requires alteration. In accordance with our opinion in B&G Meats, we hold that Triangle never possessed a right of direct access to the Steese Highway; its only right was to reasonable access. Thus, our focus is limited to the narrow issue of whether the superior court erred when it decided that Triangle's remaining access is, as a matter of law, reasonable.

Triangle urges that the reasonableness of the remaining access is a question of fact for the jury and thus the superior court erred in granting summary judgment on the issue. Although there is a jurisdictional split on this issue, ⁶ we have implicitly decided in previous opinions that it is for the trial court to determine whether the case before it presents a compensable claim for loss of access or merely a claim for traffic diversion, which is non-compensable. See B&G Meats, Inc. v. State, 601 P.2d 252 (Alaska 1979); Alsop v. State, 586 P.2d 1236 (Alaska 1978); Wernberg v. State, 516 P.2d 1191 (Alaska 1973). In the first two of these cases, we affirmed determinations by the superior court that, as a matter of law, the property owners had not presented compensable claims for loss of access. B&G Meats, 601 P.2d at 255; Alsop v. State, 586 P.2d at 1240-41. In Wernberg v. State, 516 P.2d at 1201, we decided, as a matter of law, that the owner had stated a valid claim for relief.

It is only when a trial court concludes that the landowner has presented a valid claim that the case is submitted to the jury for a determination of the extent of the taking and the amount of compensation that must be paid by the state. E. g., People v. Becker, 262 Cal.App.2d 634, 69 Cal.Rptr. 110, 113 (1968); People v. Presley, 239 Cal.App.2d 309, 48 Cal.Rptr. 672, 674 (1966); People v. Ricciardi, 23 Cal.3d 390, 144 P.2d 799, 805 (1943); State ex rel. Department of Highways v. Linnecke, 86 Nev. 257, 468 P.2d 8, 10 (1970); Stefan Auto Body v. State Highway Commission, 21 Wis.2d 363, 124 N.W.2d 319, 321-22 (1963). See Wernberg v. State, 516 P.2d 1911 (Alaska 1973).

The dissent to this opinion proposes that an abutting landowner whose property is partially taken should be permitted to claim damages for loss of access even though the remaining access is not unreasonably circuitous. Our opinion in Alsop v. State, 586 P.2d 1236 (Alaska 1978) did not avert to the reasonable access limitation on the right to recover damages and it therefore is not persuasive authority for the proposition that such a limitation only applies when an owner has suffered a partial physical taking of his land. In accordance with the majority of those who have considered the matter, ⁷ we reject the dissent's proposition because we believe that it would, as the Colorado Supreme Court stated, "create serious problems of fairness to landowners similarly situated." State Department of Highways v. Davis, 626 P.2d 661, 665 (Colo.1981). If Triangle had a neighbor who also lost direct access to the highway because of the state's project, but this loss occurred without any physical taking of land, the dissent's proposal would permit compensation for Triangle but not for the neighbor, even though both suffered the same loss and both were left with the same reasonable, alternate access to the highway. In State ex rel. State Highway Commission v. Danfelser, 72 N.M. 361, 384 P.2d 241 (1963), cert. denied, 375 U.S. 969, 84 S.Ct. 487, 11 L.Ed.2d 416 (1964), the Supreme Court of New Mexico addressed this situation, stating:

(I)f the right of access is a property right, its loss will be just as severe and should be compensable, whether a portion of the condemnee's land is taken or not....

We take the position that abutters (the defendants in this case) have a right of access to the public roads system but it does not necessarily follow that they have a right of direct access to the main-traveled portions thereof. Circuity of travel, as long as it is not unreasonable, and any supposed loss in land value by reason of the diversion of express traffic, are non-compensable.

348 P.2d at 244, 246.

We conclude that the superior court did not err in granting partial summary judgment for the state because we agree that the access remaining to Triangle after the state's improvements to the Steese Highway is reasonable. The additional distance of...