State ex rel. Shaw v. Gorman , 1980 Tenn. LEXIS 442 ( 1980 )

OPINION

COOPER, Justice.

The application for permission to appeal was granted in this case to review an award of incidental damages in an inverse condemnation action.

The state filed an action to acquire a temporary easement over a part of appel-lee’s property to be used during the construction of an improvement on U. S. Highway 26-70. No effort was made to condemn appellee’s right of access to the highway. Appellee then was put to the task of seeking compensation for loss of access, if any, resulting from the highway project. In doing so, appellee made no issue of the state’s right to construct the highway improvement but limited her proof to showing an impairment of her access to the highway and the resulting loss in value of her property.

It is well-settled that the right of access to and from a public highway is a property right, which may not be taken away, impaired or encumbered without payment of just compensation to the owner of the property, whether the fee to the way is in the public or abutter. 73 A.L.R.2d 656; 43 A.L.R.2d 1074-1079. See also Hamilton County v. Rape, 101 Tenn. 222, 47 S.W. 416 (1898); Brookside Mills, Inc. v. Moulton, 55 Tenn.App. 643, 404 S.W.2d 258 (1965); Knox County v. Lemarr, 20 Tenn.App. 258, 97 S.W.2d 659 (1936). And, as stated in Brookside Mills, Inc. v. Moulton, supra, 404 S.W.2d at 262,

Where the property right taken is the right of access to an abutting street, the measure of damages is the difference in the fair cash market value of the defendant’s property prior to the taking or impairment of the access and its value after the taking and the construction of the project for which the property right was taken. See T.C.A. § 23-1537. The trier .of fact, in determining the amount of the award, must be governed by the principle that the owner of the land shall be treated as one offering it for sale, at a fair price, while not being under any stress of circumstances that would induce him to sacrifice his property, and the condemnor as an intending buyer who is likewise free from stress, as not being forced to buy. Lewisburg & N. R. Co. v. Hinds, 134 Tenn. 293, 183 S.W. 985, L.R.A.1916 E, 420. The fact that the property has other access, or is given other access in the course of construction would be a material factor to be taken into consideration in determining the before and after value of defendant’s property and, consequentially, the value of the access taken.

The record shows that appellee’s property is located at the intersection of U. S. Highway 25-70 and Jaybird Road in Cocke County, and that it fronts 160 feet along the highway. The property is zoned commercially. It is improved by a small upholstering shop and a dwelling. In widening highway 25-70, the state constructed on its right-of-way a curbing that extended 146 feet along the front of appellee’s property. Prior to the construction of the curbing, appellee had access to her property “anywhere on the corner” to the beginning of the rockway in front of the dwelling. The state moved the entrance to appellee’s property from the corner where the roadways intersect, and reduced the size of the entrance into appellee’s property from twenty-four feet to fourteen feet.

There is evidence that the relocating of the driveway entrance and the reduction of access from twenty-four feet to fourteen feet affected even the limited commercial use of the property then being made by appellee in that deliveries to the upholstering shop were limited to trucks no larger than a pick-up and customers of the shop had difficulty in gaining access to the premises. Two witnesses testified that the impairment of access reduced the value of appellee’s commercial property $15,300.00 to $17,000.00. Witnesses for the state testified the reduction in value of appellee’s property from the highway project ranged from a low of $1,550.00 to a high of $2,250.00. The jury returned a verdict in favor of appellee in the amount of $8,000.00, well within the range of damages proven.

There being material evidence to support the jury’s finding both on the issue of loss of access and damages resulting therefrom, the judgments of the courts awarding ap-pellee $8,000.00 in damages must be affirmed, and the cause be remanded to the trial court for execution of the judgment. Costs in the cause are to be paid by appellant.

BROCK, C. J., and HARBISON, J., concur. PONES and HENRY, JJ., dissent.