Warren v. Iowa State Highway Commission

• Decision Date: 18 November 1958
• Docket Number: No. 49577,49577
• Citation: 250 Iowa 473,93 N.W.2d 60
• Parties: Leila WARREN, Plaintiff-Appellee, v. IOWA STATE HIGHWAY COMMISSION, Chris Larsen, Jr., Cecil Malone, Robert K. Beck, Robert L. Brice and Russell F. Lundy, John G. Butter and L. M. Clauson, Defendants--Appellants.
• Court: Iowa Supreme Court

Page 60

93 N.W.2d 60

250 Iowa 473

Leila WARREN, Plaintiff-Appellee, v. IOWA STATE HIGHWAY COMMISSION, Chris Larsen, Jr., Cecil Malone, Robert K. Beck, Robert L. Brice and Russell F. Lundy, John G. Butter and L. M. Clauson, Defendants--Appellants.

No. 49577.

Supreme Court of Iowa.

Nov. 18, 1958.

Rehearing Denied Jan. 16, 1959.

Norman A. Erbe, Atty. Gen., C. J. Lyman, Special Asst. Atty. Gen., Daniel T. Flores, Trial Counsel for Iowa State Highway Commission, Ames; and John L. McKinney, Gen. Counsel for Iowa State Highway Commission, Ames, for appellants.

Killmar & Reynoldson, Osceola, for appellee.

THOMPSON, Justice.

The defendants, the Iowa State Highway Commission and its members and certain of its officers, are engaged in building National Interstate and Defense Highway No. 35 in a general north and south direction across Clarke County. The right of way of this highway is 300 feet wide. It crosses an east and west secondary road which runs between Sections 13 and 24, in Township 72 N., Ranges 26 West of the Fifth Principal Meridian, which the defendants propose to close at the intersection. The plaintiff owns a 40 acre tract in Section 24, the nearest point of which is slightly more than 200 feet east of the east line of Highway No. 35 where the secondary road will be closed on that side. This tract contains the home and is the homestead of the plaintiff and her husband. She owns a somewhat larger tract situated in Section 13 about one-fourth mile west on the same secondary road, which is used in connection with the homestead and as a part of the same farming operation. The secondary road has for many years been used as a convenient means of travel between the two tracts. Cattle have been driven back and forth and farm machinery has been moved regularly by means of this road.

It is obvious that the closing of the secondary road, both on the east and west sides of the 300 foot right of way of the No. 35 highway will prevent the use of the road as plaintiff has used it in the past. It will be necessary in order for her to travel or to move livestock or machinery between the two tracts to go from her homestead a short distance east to another secondary road, then south across the mainline tracks of the Chicago, Burlington & Quincy Railroad to U. S. Highway No. 34, then west along this highway one and one-half miles to another secondary road running north and south, north along it, again crossing the railroad tracks, to reach an unimproved secondary road--probably an extension of the one which the defendants propose to close at the intersection with No. 35--then east along this road to the plaintiff's tract lying in Section 13. It is apparent that with the closing of the secondary road on each side of the right of way of No. 35 plaintiff will be compelled to substitute for the direct one-quarter mile road between her lands a route something over three miles in length, with two crossings of a main line railroad, and much of the way over a considerably traveled east and west federal highway and across No. 35. This, the plaintiff thinks, constitutes a taking of her property without just compensation, in violation of the provisions of the federal and state constitutions. Her immediate access to the secondary road is not impeded; but she contends that in a broad sense her right of ingress and egress to her two farms has been interfered with and she should have compensable damages and the obstruction of the secondary road should be enjoined until the defendants have taken proper steps to have such damages determined and paid. The trial court agreed with the plaintiff, and granted an injunction as prayed.

We understand that the plaintiff is not contending that the secondary road may not eventually, and by proper procedure, be closed. We quote from her brief and argument: 'In reality all she is asking for in this case is a forum in which she may file her claim for damages resulting from this road closure.' It is her claim that the closing of the secondary, or county, road involved here is in effect a vacation of a portion of it, and should be governed by the procedure outlined in Chapter 306 of the Codes of 1954 and 1958, I.C.A., entitled 'Establishment, Alteration, and Vacation of Highways.' Briefly, Section 306.4 of this chapter gives to the board (in this case the Clarke County Board of Supervisors) or commission which had jurisdiction of a highway the power to 'alter or vacate and close' such highway. Then follows, in Section 306.5, 306.6, and 306.7 an outline of the procedure to be followed, which requires the giving of notice. Section 306.8 provides for objections to the proposed procedure, and also contains this language: 'Any person owning land abutting on a road which it is proposed to vacate and close, shall have the right to file, in writing, a claim for damages at any time on or before the date fixed for hearing.' This provision is the keystone of the arch of plaintiff's case. She asserts the secondary road cannot be closed except by following the above sections, in which case her damages could be assessed and collected.

On the other hand, the defendants' position is that they are given the authority to close the road by Chapter 306A of the Code of 1958, I.C.A. This entire chapter was added to our law by Chapter 148 of the Acts of the Fifty-Sixth General Assembly, which became effective July 4, 1955. The chapter is entitled: 'An Act to provide for highways to be known as controlled-access facilities.' The section of greatest importance here is that part of Section 306A.6 which we set out: 'The state or any of its subdivisions shall have authority to provide for the elimination of intersections at grade of controlled-access facilities with existing state and county roads, and city or town or village streets, by grade separation or service road, or by closing off such roads and streets at the right of way boundary line of such controlled-access facility; and after the establishment of any controlled-access facility, no highway or street which is not a part of said facility shall intersect the same at grade.' (Italics supplied.) This statute the defendants claim gives them the right to close the existing secondary road at the right of way of Highway No. 35, which is admittedly a controlled-access facility, without resorting to the procedure provided by Chapter 306. They also contend that the plaintiff has no such special damage through the closing of the road, different in kind from that suffered by the general public, as to give her a right to maintain this action.

In is evident there are two principal questions to be determined here: 1, Do the defendants have the right to close off secondary roads at their intersection with controlled-access facilities under the power granted by Code Chapter 306A, I.C.A.?; and 2, Will the plaintiff suffer such special damages as to permit her to maintain an action to recover them, or to enjoin the closing of the road until they are assessed and paid? We are of the opinion the first question must be answered in the affirmative, and the second in the negative. We shall discuss them in order.

I. It is settled in Iowa that public highways are created by statute, either directly or through power delegated to some subdivision of the state, that they may be discontinued in the same way, and no individual can acquire such vested rights against the state as will prevent the discontinuance of an established public road. Chrisman v. Brandes, 137 Iowa 433, 440, 112 N.W. 833, 835. Two methods may be used by the state to prevent access to a controlled-access facility: police power, or eminent domain. In Iowa, it is evident the state is proceeding through exercise of its police power. Section 306A.1, as enacted by the Fifty-Sixth General Assemby and as it now appears in the Code of 1958, I.C.A., says: 'Declaration of policy. The legislature hereby finds, determines, and declares that this chapter is necessary for the immediate preservation of the public peace, health, and safety, and for the promotion of the general welfare.' Generally, a taking through exercise of the police power is non-compensable; through eminent domain it is compensable. The state has clearly declared here its intention to proceed through its police powers. This is not a complete answer to plaintiff's contention, however; the exercise of the police power must be a proper and reasonable one, and must not amount to a taking of property without due process of law. We shall consider this matter further in connection with Division II.

The plaintiff says Chapters 306 and 306A must be considered together; and Section 306A.6 must be held to mean that the secondary roads may not be closed off except by the procedures provided by Chapter 306, supra. We are unable to agree with this contention. Chapter 306 contains general statutes dealing with the establishment, alteration, and vacation of highways. Chapter 306A is a special statute governing controlled-access highways. The provisions of Chapter 306A.6 are in conflict with those sections of Chapter 306 which govern the closing or vacating of highways. It seems obvious to us that 306A.6 was enacted for a particular purpose and to facilitate the building of controlled-access highways. The broad road building program of the federal government requires the cooperation of the states, and speedy and effective means of acquiring rights of way, controlling access and regulation of traffic.

The plaintiff urges that Section 306A.7 provides that authorities having jurisdiction and control over the highways of the state, as provided by Chapter 306, may enter into agreements with each other or with the federal government, 'respecting the financing, planning, establishment, improvement, maintenance, use, regulation, or vacation of controlled-access facilities or other public ways in their respective jurisdictions.' This is a broad authorization; but it does not reach...