The Alexander Co. v. City of Owatonna

In my opinion, plaintiffs were entitled as a matter of law, as the trial judge held, to prevail on the merits. All the authorities, cases and texts alike, hold that plaintiffs were entitled to install the driveway under a proper permit from the city and that, if the city refused to grant a permit, it should be compelled to do so. As the court said in the similar case of Brownlow v. O'Donoghue Bros. Inc. 51 App. D.C. 114, 276 F. 636, 637, 22 A.L.R. 939: "We find no authority which sustains the position of the Commissioners [the city here], but there are many which are against it," and, as the Michigan court said in Goodfellow Tire Co. v. Commr. of Parks, etc. 163 Mich. 249, 128 N.W. 410,30 L.R.A.(N.S.) 1074:

"Our attention has not been called to a case holding that an abutting owner might be deprived of ingress and egress by means of a driveway to and from his property to the highway in front of it. Certainly, when the legislature, in 1879, gave to the commissioners authority 'to make all reasonable rules and regulations concerning the use of said boulevard,' no one supposed they might deny the right of the abutting owner to construct a driveway to the boulevard."

Whether the street was established by dedication by the owner of the land or by a taking of an easement under the power of eminent domain, the same proceedings that created the public right to the street simultaneously vested in the abutting owner a right of access thereto. Adams v. C. B. N. R. Co. 39 Minn. 286,39 N.W. 629, 1 L.R.A. 493, 12 A.S.R. 644.

The whole law on the subject of an abutting owner's right of access and the regulation of the right by public authority is summed up in 25 Am. Jur., Highways, § 154, which reads:

"The right of access to and from a public highway is one of the incidents of the ownership or occupancy of land abutting thereon. Such right is appurtenant to the land, and exists when the fee title to the way is in the public as well as when it is in private ownership. It is a property right of which the owner cannot be deprived without just compensation. This easement extends to the full width of the street. It is subordinate, however, to the public convenience, of which the public authorities having control of the streets are the judges, and is subject to such reasonable use of the street, not inconsistent with its maintenance as a public highway, as may be necessary for the public good and convenience and does not seriously impair it. The public authority may therefore impose reasonable regulations governing the exercise of suchright. It cannot, however, by virtue of such power ofregulation, be prohibited or unduly restricted. Neither may any fee or charge be imposed or exacted for the exercise of such right. Such right of access is, however, to be distinguished from the right to the use of the way itself, which the abutter enjoys as a member of the general public.

"In the exercise and enjoyment of such easement of access, an abutting owner has a right to construct a driveway or other suitable approach in front of his premises, from his land to the traveled part of the highway, if reasonably necessary and if done in such a way as not to interfere with the rights of the public, subject to such reasonable regulations as the public authority may prescribe. Furthermore, a municipality, by exercising its right to establish its grades and to fill in or bridge or otherwise improve its street and right of way so as to raise or lower the surface of such grade, cannot preclude him from employing and using such reasonable means or making such reasonable improvements as may be necessary to enable him to go from his property to the street." (Italics supplied.)

The text is sustained by a unanimity of authority found in the annotations there cited. 22 A.L.R. 942, 47 A.L.R. 902, 66 A.L.R. 1052.

While it is said that the right of access may be regulated by public authority, that does not mean, as the text cited shows, that under the guise of regulation the right may be taken away from the owner. The power to regulate the right of access does not include that of taking it. In the case of Brownlow v. O'Donoghue Bros. Inc. supra, the court in so holding said: "But regulation is one thing, and prohibition is another." In view of the fact that the authorities are collected and analyzed in the annotations cited, it is necessary to refer to only a few of the many authorities.

In the Goodfellow Tire Company case, supra, the Michigan court held that owners of property abutting on a highway have an absolute right of access thereto, as they do here under the rule of Adams v. C. B. N. R. Co. supra, and that, since that is true, a statute empowering commissioners to make reasonable rules and regulations concerning the use of a boulevard and providing that no connections therewith shall be allowed without a permit from the commissioners did not authorize the refusal of a permit. There, as here, a tire dealer sought a permit for drive-in access to his property from the adjoining street, which was denied by the regulatory authority. There, however, the court awarded a mandamus to compel the issuance of the permit.

In the O'Donoghue Bros. case, supra, the commissioners of the city of Washington were enjoined from preventing the owners of a gasoline filling station from maintaining an entrance across the sidewalk for use of automobiles.

As has been indicated, where a permit to make connection with the street to enable the abutting owner to have access to it is denied, mandamus will be awarded to compel issuance of the permit upon the theory that denial of the permit is an arbitrary act the performance of which should be compelled. Goodfellow Tire Co. v. Commr. of Parks, etc. 163 Mich. 249,128 N.W. 410, 30 L.R.A.(N.S.) 1074, supra; In re Singer-Kaufman Realty Co. 196 N.Y. S. 480; Greeley Sightseeing Co. v. Riegelmann, 119 Misc. 84, 195 N.Y. S. 845; Annotation, 47 A.L.R. at p. 903. Here, of course, the proceeding is by injunction. But the rights of the parties have been fully litigated. The decision below should be affirmed and the case should be sent back with a direction that defendant grant, as an incident of the injunctive relief, whatever permit is necessary to enable plaintiffs to construct the driveway between their property and the street.

Cases to sustain the majority's conclusion are cited which involved an entirely different fact situation or where what was said related to such a situation. In Breinig v. Allegheny County, 332 Pa. 474, 2 A.2d 842, the court held that in a fact situation such as we have here the abutter's right of drive-in access cannot be prohibited, but that it could be where he has other means of access. In Wood v. City of Richmond, 148 Va. 400, 138 S.E. 560, and in Tilton v. Sharpe, 85 N.H. 138, 155 A. 44, it was held that where the abutting owner had other means of access the right of access to a particular street may be denied by a police regulation. Of course the rule laid down in those cases can have no application here, because of the fact that plaintiffs have no means of access to the street except the one here asserted. The legal question in those cases is different for the reason that, while they held that in a situation, where, as here, the abutting owner's right of access cannot be prohibited, it may be denied where he has other means of access. Here, the question is whether a prohibition is valid where the abutting owner has no other means of access. In the cited cases the question was whether the fact that the owner had other means of access may be considered in denying the abutting owner what is otherwise clearly his right. It is to be remembered also that these cases so far as they hold that the right of access may be denied are contrary to the overwhelming weight of authority.

I think that the case of Breinig v. Allegheny County,supra, supports the view that plaintiffs' right of access to the street by a driveway for vehicular traffic across the sidewalk cannot be prohibited by a police regulation and that it can be taken away from them only by the exercise of the power of eminent domain upon payment of just compensation. In that case, the county, after construction work on a driveway for vehicular traffic connecting plaintiffs' premises with the street had been begun under permit therefor, revoked the permit and destroyed the work already done. The court awarded plaintiffs an injunction against further interference with the construction of the driveway and $350 damages caused by defendants' acts. The judgment was affirmed. In the opinion the court undertook to clarify the law in Pennsylvania. Among other things the court held that, while the exercise of the right of access may be regulated, the right cannot be taken away under the guise of regulation, and said:

"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."

Furthermore, it should be observed that cases like Wood v. City of Richmond, supra, are deemed in harmony with the views I have expressed. Annotation, 66 A.L.R. 1052, where the cited case is analyzed and discussed. The case of Tilton v. Sharpe,supra, is no different.

Of course, where it is necessary to acquire the abutting owner's right of access from his property to a street, the public is not helpless. Where there is legislative sanction for such a taking, the public may acquire the abutting owner's right of access. See, Burnquist v. Cook, 220 Minn. 48,19 N.W.2d 394; Anzalone v. Metropolitan Dist. Comm. 257 Mass. 32,153 N.E. 325, 47 A.L.R. 897. It has not been made to appear whether the defendant city has the requisite legislative authorization for such a taking; but that is not important, because of the fact that defendant justifies denying plaintiffs access to the street under its power to regulate. If there is to be a denial of plaintiffs' right of access, it should be the result of a compensated taking under condemnation and not an uncompensated one under the guise of a police regulation. Regulation may amount to a taking, and where it does it is confiscation. The only difference between an actual taking and such a regulation is, as has been said of a restriction preventing any reasonable use of property, that the regulation "leaves the owner subject to the burden of payment of taxation, while outright confiscation would relieve him of that burden." 37 Am. Jur., Municipal Corporations, § 286, citing Arverne Bay Const. Co. v. Thatcher, 278 N.Y. 222, 15 N.E.2d 587,117 A.L.R. 1110.