Wolf v. Com., Dept. of Highways

• Decision Date: 24 June 1966
• Citation: 220 A.2d 868,422 Pa. 34
• Parties: John E. WOLF and Irene D. Wolf, his wife v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF HIGHWAYS, Appellant.
• Court: Pennsylvania Supreme Court

220 A.2d 868

422 Pa. 34

John E. WOLF and Irene D. Wolf, his wife v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF HIGHWAYS, Appellant.

Supreme Court of Pennsylvania.

June 24, 1966.

William R. Mosolino, Asst. Atty. Gen., Michael R Deckman, Asst. Atty. Gen., John R. Rezzola, Deputy Atty Gen., Walter E. Alessandroni, Atty. Gen., Harrisburg, for appellant.

Robert E. Myers, New Cumberland, Gurney B. Ruby, Jr. Camp Hill, for appellees.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION

JONES Justice.

John E. Wolf and Irene D. Wolf, (Wolf), own a tract of land located on the northerly side of U.S. Route 11--an east-west highway--in Hampden Township, Cumberland County. This land--which had a 200 frontage along Route 11 and extended northward a depth of 400 --was improved with a gasoline service station, a seven-unit motel, an office and Wolf's residence. Access to the Wolf property was by means of a driveway which proceeded from Route 11 along the easterly property line in a northerly direction and then curved westerly into the property.

On and subsequent to September 9, 1958, the Commonwealth, acting through the Department of Highways, in connection with the transformation of Route 11 at a point in front of the Wolf property from a three-lane to a five-lane highway, ^[1] took certain steps which affected, either directly or indirectly, the Wolf property: (a) it condemned a rectangular portion--35--37 along Route 11 by 40 in depth--of the southeast corner of the Wolf property; (b) it constructed a concrete curb along the highway for a distance of approximately 70 in front of the gasoline station; (c) at two points along the highway it provided for means of ingress to and egress from the Wolf property; (d) it erected two concrete dividers--sometimes called divisor strips or medial dividers--on the highway within the right of way of the Commonwealth to accommodate westbound traffic desiring to turn south. ^[2] Neither that portion of the property Actually taken nor the curbing constructed along the highway are Directly at issue on this appeal.

A Board of View awarded Wolf $6204--$4800 damages plus $1404 detention damages. On Wolf's appeal to the Court of Common Pleas of Cumberland County, the jury returned a verdict of $23,187.50--$17,500 damages plus $5687.50 detention damages.

At the trial, the trial judge permitted Wolf to introduce testimony as to the presence of the dividers on the highway in front of the property. Wolf presented the plot plan of construction of the Commonwealth, oral testimony as to the effect of the construction of such dividers on traffic in the eastbound lanes desiring to enter Wolf's property and opinion evidence as to the effect on the After value of the Wolf property of the diversion of eastbound traffic by reason of the construction and location of the dividers on the highway. To the introduction of such testimony the Commonwealth objected at trial ^[3] and, after the jury verdict, again raised the question of the admissibility of such testimony in its motion for a new trial.

The court below, considering that the taking of a portion of the Wolf property and the construction of the medial dividers on the highway were integral parts of one and the same transaction, concluded that the fact of such divider construction and the impact of the location of such dividers upon the diversification of eastbound traffic from ready and direct access to the Wolf property were matters properly received in evidence and were properly for consideration by the jury as factors in arriving at the After value of the property. In reaching its conclusion, the court below, and Wolf, relied, in large measure, upon McCrady Case, 399 Pa. 586, 160 A.2d 715, and McCoy Bros., Inc. v. Commonwealth, 416 Pa. 625, 204 A.2d 915. ^[4] We cannot agree with the court in its conclusion.

Upon this record certain facts are beyond dispute: (1) the medial dividers were located upon the 'right of way' of the Commonwealth and not upon any portion of the Wolf property actually taken; (2) the location of the dividers did not prevent ready access of westbound traffic to the property nor access from the property to the westbound lanes of the highway; (3) upon completion of construction of the highway, means of reasonable ingress to and egress from the property were assured; (4) by reason of the location of the dividers on the highway, eastbound traffic, desiring to proceed to the Wolf property, would have to proceed to a point 1500--1700 east of the property, turn into the westbound lanes from a cross-road and, after proceeding in the westbound lanes, then enter the Wolf property; ^[5] (5) to eastbound traffic, desiring to enter the Wolf property, the location of the dividers created a situation which did not deny Any access to the property but did require a circuity of travel to reach a point where access to the property could be effected.

Generally speaking, the issue presented upon this appeal requires an evaluation of the right of an owner of property abutting upon a state highway to ingress to and egress from the property vis-a-vis the right of the Commonwealth, acting within the scope of its police powers, to regulate traffic upon the highway in the interest of public safety and the efficient flow of traffic upon the highway. Specifically, the issue poses the question whether the Commonwealth may regulate the direction of traffic on a highway by the location thereon of medial dividers the result of which location is to so divert traffic that access to the property of an owner of property abutting the highway is available by a circuitous, rather than a direct, route of travel without becoming liable for the effect of such diversion of traffic on the After value of the abutting owner's property. ^[6]

In this area of the law certain principles are well settled: (a) the right of access to and from a public highway is a property right of which the owner of property abutting the highway cannot be deprived without just compensation. In Breinig et ux. v Allegheny County et al., 332 Pa. 474, 2 A.2d 842, we said: 'Where land is taken or purchased for highways, the abutting owner retains, as an incident to ownership of the remainder of his land, the right of access, or of ingress and egress. This right cannot be taken from him unless compensation is made therefor under the law. It is a property right, protected by the Constitution' (at p. 480, 2 A.2d at p. 847). Such right of access does not entitle the abutting owner to access at All points along the highway; it does entitle him to access, by reasonable and convenient means, to his property from the highway and from his property to the highway. ^[7] See: McCrady Case, 399 Pa. 586, 160 A.2d 715; Laubach & Sons v. City of Easton, 347 Pa. 542, 545, 32 A.2d 881; McCargo et al. v. Evanson, 188 Pa.Super. 465, 473, 149 A.2d 588; (b) the Commonwealth, acting through the Secretary of Highways, is empowered 'to make reasonable rules and regulations governing the use of all State highways, and, by the construction of curbs, Divisor strips, painted lines or signs, may control the direction of the flow of traffic thereon. * * *' (Emphasis supplied.) (Act of June 1, 1945, P.L. 1242, art. IV, § 420, 36 P.S. § 670--420; (c) in the regulation of traffic and in the interest of public safety, the Commonwealth, acting within the scope of its police powers, may make reasonable rules and regulations which may dilute or diminish the rights of abutting property owners without liability to respond in damages. The theory is that, in such field, the interest of the abutting property owner must be subordinated to the interest of the public at large. In Breinig, supra (332 Pa. at pp. 482, 483, 484, 2 A.2d at p. 847), this Court stated: 'The absolute prohibition of driveways to an abutting owner's land which fronts on a single thoroughfare, and which cannot be reached by any other means, is unlawful and will not be sustained. But the public authorities have the undoubted right to regulate the manner of the use of driveways by adopting such rules and regulations, in the interest of public safety, as will accord some measure of access and yet permit public travel with a minimum of danger. The rules and regulations must be reasonable, striking a balance between the public and the private interest. The abutter cannot make a business of his right of access in derogation of the rights of the traveling public. He is entitled to make only such use of his right of access as is consonant with traffic conditions and police requirements that are reasonable and uniform. * * * And highways may so be regulated by them (the Commonwealth and its political subdivisions) as to limit the rights of abutting owners: (citing authorities). * * * But such acts of regulation, or limitation of rights, under the police powers must be reasonable. They cannot be sustained if they are capricious, arbitrary, or unduly delimit and unreasonably intermeddle with the rights of an abutting property owner. * * * Ordinarily the determination of this question is a legislative or executive matter, and the presumption is established that these officials act lawfully in the exercise of their discretion. But it is neverertheless the duty of the judiciary to inquire into that exercise, and if it is found the discretion of these other branches of government has been abused, we interfere immediately to relieve against oppressive and srbitrary action. This happens only when the asserted exercise of the police power is manifestly unreasonable, arbitrary or discriminatory, and the action of the officers patently unreasonable or oppressive.'; (d) if the Commonwealth, by virtue of and in the reasonable exercise of its police power,...