Ray v. State Highway Commission , 196 Kan. 13 ( 1966 )

The opinion of the court was delivered by

Schroeder, J.:

This is an action by landowners to recover damages on an implied contract for the value of property rights alleged to have been appropriated by the State Highway Commission without condemnation and without the payment of just compensation. The landowners allege the State Highway Commission has unlawfully taken their right of direct access to U. S. Highway No. 54. Upon the pleadings and admissions of the parties the trial court entered summary judgment for the State Highway Commission on the ground there was no compensable taking of the landowners’ right of access. The landowners have duly perfected an appeal.

The only question is whether under the facts of this case there was a compensable taking of the landowners’ rights of access to U. S. Highway No. 54.

It is the position of the State Highway Commission (hereafter referred to as the Commission) that upon the pleadings and admitted facts (secured by the Commission pursuant to K. S. A. 60-236) concerning which there is no dispute, the trial court properly sustained the motion for summary judgment as a matter of law.

The facts upon which the issue herein is to be determined are as follows:

The appellants, husband and wife, now own and at all times material to this action have owned real property on the north side of U. S. Highway No. 54 west of the city of Wichita, but in the urban area. The land was platted but is undeveloped commercial property. In the year 1952 the Commission condemned in the name of the State of Kansas an easement for a highway right of way over a portion of the appellants’ property, the description of which has been admitted. (Abutters’ rights of access were not condemned.)

In 1953 the Commission constructed a divided concrete four-lane highway, with separated eastbound and westbound traffic lanes, which was designated as U. S. Highway No. 54, a part of the state highway system. This highway abutted the entire south boundary of the appellants’ land, and was constructed wholly within the easement previously condemned.

In the year 1959 the Commission constructed as a part of U. S. Highway No. 54, and the state highway system, a frontage road at a location north of the westbound traffic lanes of U. S. Highway No. 54 adjacent to the appellants’ property.

No portion of the aforesaid frontage road was situated on the appellants’ property. It was located entirely within the easement condemned for highway purposes in 1952.

At all times since the construction of the aforesaid frontage road, the appellants have had and now have access to the frontage road, at all points where the north edge of this frontage road is adjacent to the appellants’ property.

At all times material herein and subsequent to the construction of the frontage road, the appellants have had and now have access to the westbound traffic lanes only at points of connection between the frontage road and the westbound traffic lanes constructed in 1953.

It is undisputed the points of connection between the frontage road serving the appellants’ property and the westbound traffic lanes are 1,067.44 feet apart. One is located 155.56 feet east of the east boundary of the appellants’ property, and the other is located 714 feet west of the west boundary of the appellants’ property. The appellants’ property fronts the highway in question for a distance of 197.88 feet.

The Commission constructed the aforesaid frontage road for the purpose of making U. S. Highway No. 54 safer, less dangerous and for the welfare of the people, following a study and recommendation by its safety department.

As heretofore stated, the simple issue to be determined is whether upon the foregoing facts there was a compensable “taking” of the appellants’ rights of access to the public highway. This is a question of law to be determined by the court in the first instance. (Brock v. State Highway Commission, 195 Kan. 361, 404 P. 2d 934.)

The Commission contends that such action is a reasonable exercise of the police power in regulating traffic flow upon the main traveled portion of the highway.

It has been held if the State Highway Commission “takes” property for its lawful purpose without resort to condemnation or other proceeding, and a person deprived of property rights is not compensated, the injured party may bring an action against the Commission for full compensation in the form of an action on implied contract. (State Highway Comm. v. Puskarich, 148 Kan. 388, 83 P. 2d 132; Atchison v. State Highway Comm., 161 Kan. 661, 171 P. 2d 287; and Dugger v. State Highway Commission, 185 Kan. 317, 342 P. 2d 186.)

It has also been held that access to and from an existing public highway is one of the incidents of ownership of land abutting thereon, sometimes called a common law right of access, which may not be taken from the owner by the public without just compensation, when the landowner has been deprived of a legally protected right of access. Where the Commission exercises its power to take a legally protected right of access by condemnation or otherwise, the affected landowner has a right to compensation for the value of the property right taken. While the Commission concedes the foregoing law, it contends the cases so holding do not decide this case.

It is argued the power to regulate within the police power of the state gives the Commission the power to act in the public interest without incurring liability for compensation, even though property rights of citizens may be affected or even destroyed. (Citing, Smith v. State Highway Commission, 185 Kan. 445, 346 P. 2d 259, and cases cited therein.)

It must be recognized that these two types of power which the Commission exercises are mutually exclusive polestars with different legal consequences. The use of one incurs liability for compensation, but the other does not. An act by the Commission must be classified as an exercise of one type of power or the other. It cannot be both-

In the instant case the acts of the Commission, as revealed by the uncontroverted facts in the record, must therefore be held to be within the orbit of the power of eminent domain, or within the orbit of the police power to protect and safeguard the public welfare by regulating traffic on the highways. That is the issue presented by this appeal.

A similar question was brought into focus in Smith v. State Highway Commission, supra, as follows:

“Subject to constitutional limitations, the state has absolute control over the streets and highways within its borders. (State v. Atkin, 64 Kan. 174, 67 Pac. 519, 97 Am. S. R. 343, affirmed Atkin v. Kansas, 191 U. S. 207, 24 S. Ct. 124, 48 L. Ed. 148.) Such power of supervision and control may be exercised directly by the legislature, or it may be delegated to a subordinate governmental agency.

“The basic problem in every case involving impairment of the right of access is to reconcile the conflicting interests — i. e., private v. public rights. The police power is the power of government to act in furtherance of the public good, either through legislation or by the exercise of any other legitimate means, in the promotion of the public health, safety, morals and general welfare, without incurring liability for the resulting injury to private individuals. (Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, L. Ed. 205 and Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80, 37 L. R. A. [n. s.] 877.) Eminent domain, on the other hand, is the power of the sovereign to take or damage private property for a public purpose on payment of just compensation. (Highbarger v. Milford, supra [71 Kan. 331, 80 Pac. 633]; and Simmons v. State Highway Commission, supra [178 Kan. 26, 283 P. 2d 392].)

“Since there is no doubt that the right of access, like any other property can be taken for public purpose under eminent domain upon payment of just compensation, the interesting question is how far the public can proceed under the police power. Determination of whether damages are compensable under eminent domain or noncompensable under the police power depends on the relative importance of the interests affected. The court must weigh the relative interests of the public and that of the individual, so as to arrive at a just balance in order that government will not be unduly restricted in the proper exercise of its functions for the public good, while at the same time giving due effect to the policy in the eminent domain clause of insuring the individual against an unreasonable loss occasioned by the exercise of governmental power.

“It is well settled the limitation and regulation of highway traffic comes under the police power, and it makes no difference how or where any part of the traffic gained access to the road. The regulation of traffic without liability for the payment of compensation includes, among other things, prohibiting left turns, prescribing one-way traffic, prohibiting access or crossovers between separated traffic lanes, prohibiting or regulating parking, and restricting the speed, weight, size and character of vehicles allowed on certain highways.

“Where does the police power end and the power of eminent domain begin? Some courts have attempted to generalize by declaring that the police power ends when the injury to the property owner in not being paid for his property is greater than the injury to the public in having to pay for the property. (See, The Limited-Access Highway, 27 Wash. L. Rev., pp. 111-129; and Freeways and the Rights of Abutting Owners, 3 Stanford L. Rev., pp. 298-811.)” (pp. 453,454.)

In Smith the court held that compensation for taking access rights must be paid because the state there condemned the abutting landowners’ rights of access in its eminent domain proceeding. On the facts in that case, there was no complaint by the landowners concerning that portion of their property abutting the highway, where the State Highway Commission provided them with access to the highway via a frontage road. The issue concerned the taking by condemnation of 1410 feet of the abutters’ rights of access which fronted existing U. S. Highway No. 36 where no frontage road was planned or provided.

On the facts the issue here presented was not decided in Smith v. State Highway Commission, supra.

The proposition of law here presented was given careful consideration by the court in Brock v. State Highway Commission, supra. There the position which this court had previously taken in Franks v. State Highway Commission, 182 Kan. 131, 319 P. 2d 535, and in Atkinson v. State Highway Commission, 184 Kan. 658, 339 P. 2d 334, was reconsidered, and these decisions were overruled. In Brock the court said:

“Without entering into an extended discussion as to what does or does not constitute undue interference with access rights on a conventional or land-service highway we are forced to conclude that the doctrine granting a right of access to abutting landowners as developed for conventional or land-service highways does not have the same application to controlled access highways.

“The appellants vigorously contend that the controlled access facilities statute (K. S. A. 68-1901, et seq.) is a mandatory provision requiring condemnation and payment of damages when access rights are restricted. We do not agree with this construction. The statute in no way attempted to restrict the state’s existing right to conrol access under the police power. The act was no doubt intended to give the State Highway Commission authority by condemnation to take the right of access in its entirety. This could not be done under the police power. An owner of land abutting a highway could not be placed in a cul-de-sac under the case made law. This was the right that was extended by the controlled access facilities statute. Perhaps the chief design of the statute was to permit the State Highway Commission to meet the standards of the federal laws. It was more in the form of an enabling statute to meet the requirements of the federal Interstate and Defense Highway System. (23 U. S. C. A. § 101, et seq.) The standard adopted for the Interstate and Defense Highway System required that states be able to acquire access rights abutting thereon.

“We adhere to the rule that the owners of abutting lands have a right of access to the public road system but it does not follow that they have a right of direct ingress and egress to and from a controlled access thoroughfare. The right of access, if it can be determined to be a right under such circumstances, is the right to reasonable, but not unlimited, access to and from the abutting lands.

“Although an abutting landowner has a right to use a highway he cannot be heard to say that he has been deprived of his right or compensably damaged because he does not have direct access to a certain highway where public judgment dictates that access to and from the highway should be controlled and is subject to control under the police power of the state.” (pp. 369, 370.) (Emphasis added.)

The substance of the holding in Brock is that the right of access of an abutting property owner upon a public street or highway is merely a right to reasonable, but not unlimited, access to and from the abutting property. As applied to controlled access facilities, where a frontage road is provided to which the abutting owners of property have direct access, and they have reasonable access from the abutting property via the frontage road to the through-traffic lanes of the controlled access highway, the abutters’ rights of access have not been taken or appropriated by the State Highway Commission, but merely subjected to regulation under the police power of the state, and their damages, if any, are non-compensable.

Where property owners are afforded complete ingress and egress to a frontage road upon which their property abuts, and they have reasonable access via the frontage road to the main traveled lanes of a controlled access highway, any inconvenience suffered by them is merely non-compensable circuity of travel. Under these circumstances, any decline that has occurred in the value of their property which is the result of a diversion of traffic is non-compensable. An abutting owner of property has no right to the continuation of a flow of traffic in front of his property.

In Brock a frontage road, which was a part of the highway sysstem, provided the owners of land with access to the through-traffic lanes at points of connection, only 575 feet apart. This was held as a matter of law to be a reasonable regulation of traffic within the police power of the state, acting through the State Highway Commission, and access was not denied. There the landowners were granted access to the through-traffic lanes at the extremeties of their property fronting the controlled access facility, and the State Highway Commission had constructed cross-over openings for their special use and benefit. Such cross-over openings were only 575 feet apart and corresponded with the points of connection which the landowners had from the frontage road to the through-traffic lanes.

The question in the instant case therefore resolves into whether the points of connection between the frontage road serving the appellants’ property and the westbound traffic lanes of U. S. Highway No. 54 provide the appellants with reasonable access from their abutting property to the through-traffic lanes of the controlled access facility. These points of connection are 1,067.44 feet apart. One using the westbound traffic lanes on this controlled access facility would be required to make an exit 155 feet east of the east boundary of the appellants’ property onto the frontage road and thereby gain access to the appellants’ property. In leaving the appellants’ property one would be required to travel 714 feet west of the west boundary of the appellants’ property on the frontage road and there enter upon the main traveled westbound traffic lanes.

Under these facts we hold as a matter of law the appellants have reasonable access from their abutting property to the through-traffic lanes of U. S. Highway No. 54. They are afforded complete ingress and egress from their abutting property to the frontage road, and reasonable access from their property via the frontage road to the through-traffic lanes of the controlled access facility. It follows that the abutters’ rights of access have not been taken or appropriated by the Commission, hut merely subjected to regulation under the police power of the state, and their damages, if any, are non-compensable.

The regulation of cross-over traffic between the east and westbound lanes of through-traffic on a controlled access facility is within the police power of the state. (See, Smith v. State Highway Commission, supra.)

The judgment of the lower court is affirmed.