Walker v. State, 33385

• Decision Date: 29 March 1956
• Docket Number: No. 33385,33385
• Citation: 295 P.2d 328,48 Wn.2d 587
• Parties: Virgil H. WALKER, Floyd W. Zimmerman, Ernest E. Berlin and Ida K. Berlin, his wife, Appellants, v. STATE of Washington, State of Washington Highway Commission, and J. D. Fiorito, Maria G. Fiorito, E. Ferullo, E. De Tore and V. J. Merlino, d/b/a Fiorito Bros., Respondents.
• Court: Washington Supreme Court

Page 587

48 Wn.2d 587

295 P.2d 328

Virgil H. WALKER, Floyd W. Zimmerman, Ernest E. Berlin and Ida K. Berlin, his wife, Appellants, v. STATE of Washington, State of Washington Highway Commission, and J. D. Fiorito, Maria G. Fiorito, E. Ferullo,

E. De Tore and V. J. Merlino, d/b/a

Fiorito Bros., Respondents.

No. 33385.

Supreme Court of Washington, Department 2.

March 29, 1956.

Rehearing Denied May 9, 1956.

Riddell, Riddell & Williams, Seattle, for appellants.

Don Eastvold, Paul Sinnitt, Edward E. Level, Newell Smith, Olympia, for respondents.

WEAVER, Justice.

In this action, plaintiffs pray that the state highway commission be enjoined from installing a concrete, center-line curb on that portion of primary state highway No. 2 upon which plaintiffs' property abuts. until (a) the commission follows the procedures set forth in RCW 47.52 (limited access facilities statute) and (b) until fair compensation shall first have been paid to plaintiffs; or, should the curb be installed during the pendency of this action, a jury be empaneled to determine plaintiffs' damages.

The trial court sustained a demurrer to plaintiffs' amended complaint. Refusing to plead further, they appeal from a judgment dismissing their action with prejudice.

Plaintiffs own various interests in certain real property. A motel is located thereon. The only access to the property is its five-hundred-foot frontage along the south side of primary state highway No. 2.

The allegations upon which plaintiffs rely to set forth a cause of action are these:

That plaintiffs' motel property abuts the south side of a four-lane highway; that tourists who travel in a westerly direction make up the bulk of plaintiffs' patronage, which requires that they make a left-hand turn across the highway against oncoming traffic, in order to enter plaintiffs' property; that

'* * * defendants State of Washington and State of Washington Highway Commission purport to install the said raised concrete bar or curb ['at the center of said highway'] pursuant to the police powers of the State of Washington and without compliance with R.C.W. Chapter 47.52';

that the state has made an administrative determination that the highway in front of plaintiffs' property is to be changed to a permanent limited-access facility, has initiated studies, prepared detailed plans, and initiated 'hearings thereon pursuant to R.C.W., Chapter 47.52'; that the proposed concrete center-line curb is an integral part of, and a necessary step in, the construction of the limited-access facility as planned by the defendants;

'* * * that the deprivation of egress and ingress as above described will severely damage the above described property and will seriously depress the fair market value of said property, in an amount not fully known to plaintiffs at this time. That the plaintiffs have no adequate remedy at law';

that defendants have notified plaintiffs that they will not follow the procedure of RCW 47.52 for the installation of the dividing curb; and that compensation for damages allegedly arising therefrom will not be paid.

We do not consider the affidavits and counter-affidavits which appear in the record. We cannot go outside the amended complaint to ascertain the facts. Arnesen v. Rowe, 1955, 46 Wash.2d 718, 284 P.2d 329.

The demurrer to plaintiffs' amended complaint presents a question of first impression in this jurisdiction.

Is an abutting property owner entitled to compensation under Art. I, § 16, amendment 9, of the state constitution, because an alleged diminution of the right of ingress and egress arises out of the installation, by the highway authorities, of a curb or dividing section in the center of a four-lane highway?

The owner of property abutting upon a public thoroughfare has a right to free and convenient access thereto. This right of ingress and egress attaches to the land. It is a property right, as complete as ownership of the land itself.

On numerous occasions, this court has held that the abutting property owner is entitled to just compensation if this right is taken or damaged. Brown v. City of Seattle, 1892, 5 Wash. 35, 31 P. 313, 32 P. 214, 18 L.R.A. 161 (reduction of street grade in front of owner's property); State ex rel. Smith v. Superior Court, 1901, 26 Wash. 278, 66 P. 385 (a trestle and elevated railway built in front of relator's property); Lund v. Idaho & Washington Northern R., 1908, 50 Wash. 574, 97 P. 665 (railroad tracks installed diagonally across street in front of property); Brazell v. City of Seattle, 1909, 55 Wash. 180, 104 P. 155 (vacation of one half of street opposite plaintiff's property); Smith v. City of Centralia, 1909, 55 Wash. 573, 104 P. 797 (vacation of portion of street opposite plaintiff's land); Fry v. O'Leary, 1927, 141 Wash. 465, 252 P. 111, 49 A.L.R. 1249 (vacation of portion of street); State ex rel. Moline v. Driscoll, 1936, 185 Wash. 229, 53 P.2d 622 (street grade lowered and sidewalk reduced in width).

In these cases, there was either physical injury to the owner's property or physical impairment of access. None of them involves the division of a public thoroughfare into separate roadways by division stripes or concrete curbs. Exercise of police power was not involved. Factually, they are distinguishable from the case before us.

The facts alleged in the amended complaint indicate that the real basis of plaintiffs' claim for damages is the diversion of westbound traffic from their motel business. Since there is eastbound traffic in front of plaintiffs' property, it is permissible for us to infer that westbound traffic may turn, at some point west of plaintiffs' property, and become eastbound, and thus approach plaintiffs' property.

Plaintiffs have no property right in...