County of Anoka v. Blaine Building Corp. ( 1997 )

OPINION

GARDEBRING, Justice.

This ease raises the question of what measure of damages is appropriate when a portion of property is taken for the reconstruction of a roadway that coincidentally includes the addition of a median foreclosing access to the remaining property from one side of the roadway. Appellants are property owners who had portions of their land taken, under the power of eminent domain, for the roadway reconstruction project. Appellants sought to have the partial loss of traffic access caused by the new median considered in the determination of damages for the partial taking. The trial court and the court of appeals both held that partial loss of traffic access is not a compensable loss, and accordingly, evidence of that loss may not be introduced into the determination of severance damages. We affirm on the same basis.

In early 1991 the Anoka County Commissioners approved a plan to reconstruct County State-Aid Highway Number 51, otherwise known as University Avenue, between 97th Avenue and 106th Avenue, Northwest. The significant aspect of the construction project, for purposes of this appeal, was the widening of the road and the installation of a median strip that prevents left turns into and out of properties along University Avenue.

Appellants are owners of four parcels of land, parcels 18, 19, 20 and 21, on the east side of University Avenue, between 101st Avenue and 102nd Lane. Parcel 18 contains a bank, the western portion of parcel 21 is improved with a gas station and convenience store, and parcels 19 and 20 are unimproved vacant lots. To accomplish the reconstruction of University Avenue, the county acquired a 27-foot strip of land from parcels 18, 19 and 20, and an 18.7-foot strip from parcel 21. The new median on University Avenue was constructed entirely on the existing right-of-way, and not on any of the land taken from appellants. While the new median prevents left turns to and from the southbound lanes, access to and from the northbound lanes is unchanged.

Pursuant to the procedures set forth in Minn.Stat. ch. 117, the county petitioned for and obtained an order granting the transfer of title to the affected strips of land in mid-1993. At the same time, the trial court appointed commissioners to determine the damages due to each land owner, as provided in Minn.Stat. § 117.075. The commissioners’ recommendation for parcels 18 through 21 included severance damages that were based, in part, on the loss of traffic access to and from the southbound lanes of University Avenue.

In two separate actions — one concerning parcels 18 and 19, and the other concerning parcels 20 and 21 — both the county and the landowners appealed to the district court. The county sought partial summary judgment in both matters, arguing that, as a matter of law, the property owners were not entitled to introduce evidence of the partial loss of traffic access into the damages assessment. The trial courts granted partial summary judgment on that basis and the landowners appealed. In a consolidated appeal, the court of appeals affirmed the grant of partial summary judgment as to both landowners. County of Anoka v. Maego, Inc., 541 N.W.2d 375 (Minn.App.1996).

On appeal from summary judgment, we consider two questions: first, whether there are any genuine issues of material fact, and second, whether the lower courts erred in their application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990) (citing Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988)). Because there are no factual disputes, this case requires us to determine only whether the lower courts erred in their application of the law.

It is well settled that the state must compensate a landowner when land is taken for a public purpose. The Minnesota Constitution provides: “Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured.” Minn. Const. art. 1, § 13. A taking “include[s] every interference, under the right of eminent domain, with the possession, enjoyment, or value of private property.” Minn.Stat. § 117.025, subd. 2 (1996).

When there has been only a partial taking of land, the damages are known as “severance damages” and are measured by the “before and after” rule: the difference in market value of the land before the taking and the market value of the remaining land after the taking. Minneapolis-St. Paul Sanitary Dist. v. Fitzpatrick, 201 Minn. 442, 457, 277 N.W. 394, 402 (1937); State by Humphrey v. Strom, 493 N.W.2d 554, 558-59 (Minn.1992). To determine the fair market value, “any competent evidence may be considered if it legitimately bears upon the market value.” Strom, 493 N.W.2d at 559 (citations omitted); see also Minneapolis-St. Paul Sanitary Dist., 201 Minn. at 449, 277 N.W. at 399. The damages, however, must arise from changes in the land actually taken, and not merely from the impact of the construction project as a whole. City of Crookston v. Erickson, 244 Minn. 321, 325, 69 N.W.2d 909, 912-13 (1955); Strom, 493 N.W.2d at 560.

Interference with access to an abutting roadway may be a compensable taking. While property owners have no vested interest in the continued flow of traffic past the property, Hendrickson v. State, 267 Minn. 436, 442, 127 N.W.2d 165, 170 (1964), property owners do have a right of “reasonably convenient and suitable access” to a public street or highway that abuts their property. This right is in the nature of a property right. Johnson v. City of Plymouth, 263 N.W.2d 603, 605 (Minn.1978). See also State by Mondale v. Gannons, Inc., 275 Minn. 14, 19, 145 N.W.2d 321, 326 (1966); Hendrickson, 267 Minn. at 445-46, 127 N.W.2d at 172-73. Thus, a property owner suffers compensable damage when the roadway is changed in such a way that the owner is denied reasonably convenient and suitable access to the main thoroughfare in at least one direction. Gannons, 275 Minn. at 19, 145 N.W.2d at 326 (citing Hendrickson, 267 Minn, at 436, 127 N.W.2d at 167) (emphasis added). See also Recke v. State, 298 Minn. 500, 502, 215 N.W.2d 786, 788 (1974). “[T]he law is well settled * * * that the dividing of a roadway by median strips or dividers cannot be made the subject of compensation in condemnation,” where, as a result, a property owner loses traffic access in one direction, but retains access in the other. Gannons, 275 Minn. at 23,145 N.W.2d at 329.

Here, appellants suffered a partial taking of their properties for a public purpose, the reconstruction of University Avenue. Thus, there is no question that they are entitled to severance damages for that taking. The question presented is what factors may be considered in determining those damages. In particular, we must determine whether the loss of traffic access to and from one direction, caused by the construction of the median, may be included when determining the market value of their remaining land after the partial taking.

Appellants recognize that they do not have a right to be compensated for the loss of traffic access to and from the southbound lanes of University Avenue, if that were the only damage to the value of their properties. Nevertheless, they argue that they should be allowed to include that partial loss of access in the determination of severance damages, because access to traffic is a factor that influences the market value of the remaining property. Further, they note that, in general, “evidence of any matter with [sic] would influence a prospective purchaser and seller in fixing the price” may be included when assessing severance damages. City of St. Paul v. Rein Recreation, Inc., 298 N.W.2d 46, 50 (Minn.1980). Because any prospective purchaser would consider the absence of traffic access in purchasing these properties, appellants argue, traffic access should be considered here.

We are not persuaded that the policy of evidentiary inelusiveness in market value determinations should overcome the longstanding rule that loss of traffic access from the construction of a median is not a compensa-ble taking. Allowing appellants to introduce traffic access into the determination of market value would allow them to do indirectly what they cannot do directly: be compensated for the loss of traffic access from one side of the roadway when they retain access to the other side.¹

Appellants face an additional barrier to recovering for the median construction: the loss of access did not result from changes in the property taken from appellants, but from a change on the existing right of way. Generally, an owner is not entitled to damages caused to remaining land by the use of an adjoining piece of property acquired from other landowners, even though all the properties are used for the same project. City of Crookston v. Erickson, 244 Minn. 321, 325, 69 N.W.2d 909, 913 (1955).

Appellants urge us to apply an exception to this general rule that we enunciated in City of Crookston.² There, we held that when part of an owner’s land is taken and the part taken “constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put,” the owner is entitled to recover the full damage resulting from the project, including that part of the project built on adjoining lands. 244 Minn. at 327, 69 N.W.2d at 914. Thus, in City of Crookston, we allowed an owner whose taken property jutted into a corner of the parcel used to build a sewage treatment facility to obtain severance damages which included the effect of the treatment facility. Id. at 327-28, 69 N.W.2d at 914. At the same time, we did not allow another owner whose land was taken for the construction of a pipeline that delivered sewage to the treatment facility to be compensated for the effects of the treatment facility. Id.

We have never applied the City of Crook-ston doctrine to any facts other than those presented in that case itself, and we decline to do so here. In City of Crookston, we were concerned that the damages were practically impossible to apportion between the part of the project built on the land taken from the owner and the project as a whole. 244 Minn. at 326, 69 N.W.2d at 913. Other states that have adopted the “integral and inseparable” rule have done so out of concern that apportioning damages in certain fact situations is impossible. See, e.g., Andrews v. Cox, 129 Conn. 475, 481, 29 A.2d 587, 590 (1942); Haggard v. Indep. School Dist. of Algona, 113 Iowa 486, 494, 85 N.W. 777, 780 (1901); City of Albuquerque v. Westland Development Co., Inc., 121 N.M. 144, 148-49, 909 P.2d 25, 32-34 (Ct.App.1995). We do not believe the apportionment of damages here is difficult, and therefore the City of Crookston exception does not apply. Indeed the type of damage sought to be included here is very different than the remainder of the “before and after” consideration, and actually, therefore, quite easy to “apportion.” While the question of whether the use of the part taken constitutes an integral and inseparable part is usually a question of fact, City of Crookston, 244 Minn. at 327-28, 69 N.W.2d at 914, this case is so clearly not within that exception that we decline to apply it as a matter of law.

Moreover, deciding this case in appellants’ favor would yield future inequitable results. Clearly, if a land owner did not have any land physically appropriated but lost street access in one direction, the owner would not be entitled to damages for the loss of access. Gannons, 275 Minn. at 23, 145 N.W.2d at 329. Yet the owner’s neighbor, who suffered the same loss of access but did have a strip of land taken, would be entitled to damages. Nothing in the law of takings in Minnesota supports such a result.

At its heart, appellants’ argument seems to be that the loss of access in one direction is somehow different in quality merely because it occurs coincidentally with an unrelated partial taking and that this difference is constitutional in its dimension. However, that implicit argument ignores the fact that the constitutional basis requiring compensation for a direct taking is identical to that requiring payment for damage to property without an actual physical appropriation. Minnesota Const. art. 1, sec. 13 requires compensation for interference with both “possession” and “value” of private property.³ Moreover, requiring compensation in both circumstances serves the same purpose: to bar the government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. Compare Wegner v. Milwaukee Mut. Ins. Co., 479 N.W.2d 38, 40 (Minn.1991) (purpose of compensation for damages) with Minneapolis-St. Paul Sanitary Dist. v. Fitzpatrick, 201 Minn. 442, 449, 277 N.W. 394, 398 (1937) (purpose of compensation for physical appropriation). Thus, the loss of access in this ease, where there was a contemporaneous partial taking, is not different in a constitutional sense from those cases where we have held that loss of traffic access is not compensable “damage” to an owner’s property.

Therefore, we hold that the loss of traffic access may not be the basis of severance damages where a property owner is subject to a partial taking and coincidentally loses access due to the construction of a median barrier.⁴

Our holding is also dispositive of appellants’ argument that excluding evidence of traffic access contradicts the Rules of Evidence and statutory eminent domain procedures insofar as those provisions have a policy of the broad admissibility of evidence that is helpful to the determination of market value. State by Humphrey v. Strom, 493 N.W.2d 554, 559 (Minn.1992). Our decision is a substantive determination of what kinds of losses may be the subject of compensation in a condemnation proceeding for the partial taking of land. Because we hold that loss of traffic access in one direction may not be taken into account in determining severance damages, such evidence is simply not relevant, and therefore not admissible. See Minn. R. Evid. 401, 402.

Affirmed.

BLATZ, J., took no part in the consideration or decision of this case.

1 . The dissent argues that our result would be different if we relied more heavily on State by Humphrey v. Strom, 493 N.W.2d 554 (Minn.1992). There, we held that evidence of construction-related interferences are admissible as a factor affecting market value, even though such interferences are temporary and of the kind affecting all properties abutting major road construction projects. 493 N.W.2d at 560-61. We further held that evidence of loss of visibility to the public travelling on a redesigned highway, to the extent the loss results from changes in the property taken from the owner, may also be admitted as a factor affecting market value. Id. at 561-63. We do not believe Strom militates the result the dissent urges. As to the market effects of the loss of access, we have, in Gannons and Hendrickson specifically ruled that it is not a compensable loss; there is no parallel ruling as to the loss experienced in Strom, loss of visibility. Thus, Strom simply does not help in the effort to reconcile the general policy of evidentiary inclusiveness in market value determinations and the longstanding rule of Gannons and Hendrickson.

2 . This issue is raised for the first time in this appeal. It is well settled that a party may not generally raise issues for the first time on appeal. Matter of Welfare of K.T., 327 N.W.2d 13, 16-17 (Minn.1982). We will consider this issue here, however, to give sufficient guidance to the courts below in resolving similar issues.

3 . See Hendrickson, 267 Minn. at 439, 127 N.W.2d at 169; see also Johnson v. City of Plymouth, 263 N.W.2d 603, 605-606 (Minn. 1978). However, not every conceivable kind of injury to the value of private property resulting from road construction is "damage” in the constitutional sense. Thomsen v. State by Head, 284 Minn. 468, 472, 170 N.W.2d 575, 579 (1969). The damage must be direct, substantial, and peculiar to the owner, and it must differ markedly from the damage suffered by the public at large. Id. at 473, 170 N.W.2d at 579. Because changes in the layout or structure of a road rarely inflict unique damages on one abutting property owner, we have generally excluded most inconveniences arising from road improvements as subjects of compensation. See Thomsen, 284 Minn. at 474, 170 N.W.2d at 580; Hendrickson, 267 Minn. at 441, 127 N.W.2d at 170; see also 4A Phillip Nichols, Nichols’ The Law of Eminent Domain § 14.12 (Julius L. Sackman ed., 3d ed.1989). There is no allegation here that the loss of traffic access caused by the new median in University Avenue is unique to these landowners, and the partial taking does not change that fact.

4 . Our conclusion is consistent with that of the majority of other stales that have faced this same question. County of Winnebago v. Rico Corp., 11 Ill.App.3d, 882, 883-84, 296 N.E.2d 867, 869-70 (1973) (surveying other states); Richley v. Jones, 38 Ohio St.2d 64, 67-68, 310 N.E.2d 236, 238-40 (1974) (also surveying other states). See also, Division of Administration, State Dept. of Transp. v. Capital Plaza, Inc., 397 So.2d 682, 683 (Fla.1981); State ex rel. Moore v. Bastian, 97 Idaho 444, 447-49, 546 P.2d 399, 402-04 (1976); State v. Cheris, 153 Ind.App. 451, 457, 287N.E.2d 777, 780 (1972); Hales v. City of Kansas City, 248 Kan. 181, 184-85, 804 P.2d 347, 349-50 (1991); W.E.W. Truck Lines, Inc. v. State, Dept. of Roads, 178 Neb. 218, 222, 132 N.W.2d 782, 785-86 (1965); State Highway Commissioner v. Howard, 213 Va. 731, 732, 195 S.E.2d 880, 881 (1973).