Brock v. State Highway Commission

Schroeder, J.,

dissenting: I must respectfully dissent on the ground the court has completely reversed its previous construction of the controlled access facilities statute (K. S. A. 68-1901 to 68-1906, inclusive), as recently announced in Smith v. State Highway Commission, 185 Kan. 445 , 346 P. 2d 259 .

In my opinion previous decisions of this court have construed the controlled access facilities statute as having defined the state’s policy on frontage roads, and these decisions should control the issue here presented.

The difficulty of the court on questions involving access on Kansas highways is clearly indicated by the decision in Riddle v. State Highway Commission, 184 Kan. 603 , 339 P. 2d 301 . There the opinion written for the court was not approved by any single member of the court. The writer of the opinion dissented in part, which was joined by another Justice; two Justices concurred in the result; one Justice wrote a concurring opinion in which another joined; and still another Justice concurred in the opinion written for the court as supplemented by the written concurring opinion.

The Riddle case was filed May 16, 1959, approximately eighteen months after the decision in Franks v. State Highway Commission, 182 Kan. 131 , 319 P. 2d 535 , which was decided by a unanimous court. On the same day the Riddle decision was filed, the decision in Atkinson v. State Highway Commission, 184 Kan. 658 , 339 P. 2d 334 , was filed in which one Justice concurred in the result and another Justice dissented. Approximately six months after Riddle the decision in Smith v. State Highway Commission, 185 Kan. 445 , 346 P. 2d 259 , was filed with one member of the court dissenting. It has been thought for all practical purposes among the members of the Bench and Bar that the Smith decision had settled the question of access rights in the state of Kansas under the controlled access facility statute.

While factually the decision in Smith is distinguishable from the factual situation presently confronting the court, the Smith decision was bottomed directly upon legislation enacted as the controlled *374 access facility statute. In the opinion, after defining and discussing the distinction between the state’s police power and its power of eminent domain at pages 453 and 454, the court said:

“Our determination of how far the State Highway Commission can proceed under the police power to curtail or restrict the rights of access of an abutting property owner is materially assisted by legislative enactments.” (p. 455.)

After the foregoing paragraph the history of legislative enactments and the present controlled access facility statute was discussed at pages 455, 456 and 457. The court then concluded:

“We think it clear that the legislature by enacting the controlled access facilities statute has spoken on the subject of controlled access highways. By the provisions of 68-1903, supra, it has prescribed the exclusive methods by which private or public property, including rights of access, may be acquired for the establishment of controlled access facilities—that is, ‘by gift, devise, purchase or condemnation, in the same manner as now or hereafter authorized by law for acquiring property or property rights.’ (Emphasis added.) The legislature intended by 68-1903, supra, that a landowner deprived of abutters’ rights of access would be compensated for them.” (p. 457.)

It should he noted the court specifically stated the legislature had spoken on the subject of controlled access highways and prescribed the exclusive methods by which private or public property, including rights of access, may be acquired for the establishment of controlled access facilities.

By the decision herein the court has reconstrued the statute by holding the State Highway Commission need not acquire rights of access to establish a controlled access facility—that the provisions of the statute with respect to the acquisition of rights of access are permissive instead of mandatory.

For the reasons hereafter assigned, it will he shown the sections of the statute in question are not subject to such interpretation. Elucidation in the construction of these statutes first occurred in Atkinson v. Sate Highway Commission, supra, as follows:

“The commission argues there must be an unreasonable, arbitrary, complete or some other equivalent acquisition of the rights of access, but the legislature, in its wisdom, did not see fit to put any limit on the amount of access required to be taken before the commission must resort to condemnation if it were not acquired by gift, devise or purchase. We think the statute means just what it says.

“To hold that the above section does not require the commission to compensate a landowner for the taking of his rights of access would be neither an ordinary nor a judicial interpretation of the statute.” (pp. 663, 664.) (Emphasis added.)

*375 The controlled access facility statute is set out in K. S. A. 68-1901 to 68-1906, inclusive.

K. S. A. 68-1901 defines a controlled access facility as:

“{a) ‘A controlled access facility’ means a highway, road or street espically [sic] designed to expedite and control through and local traffic, and over, from or to which highway, road or street, owners or occupants of abutting property shall have only a controlled right or easement of access, light, air or view. Such highways, roads or streets may be opened to use by all customary forms of street and highway traffic, or they may be parkways from which designated vehicles shall be excluded.” (Emphasis added.)

The same section defines a frontage road as follows:

“(c) ‘Frontage road’ means a highway, road or street which is auxiliary to and located on the side of another highway, road or street for service to abutting property and adjacent areas and for control of access to such other highway, road or street.’’ (Emphasis added.)

K. S. A. 68-1902 confers upon highway authorities the power to establish controlled access facilities and reads:

“The state, county or city highway authorities, acting alone, or cooperating with each other or with any federal, state or local authority, or any other state, are hereby authorized to design, designate, establish, regulate, vacate, alter, improve, construct and maintain controlled access facilities wherever such highway authorities determine that traffic conditions, present or future, justify such facilities, and said highway authorities may regulate and restrict the use of such facilities by the various classes of vehicles or traffic in a manner consistent with the purposes and provisions of this act. The highway authorities may so regulate, restrict or prohibit access to a controlled access facility so as to best serve the traffic for which such facility is intended.’’ (Emphasis added.)

K. S. A. 68-1903 provides for the acquisition of property and property rights as follows:

“The highway authorities, jointly or severally, may acquire the desired private or public property, including rights of access, light, air or view for controlled access facilities, by gift, devise, purchase or condemnation, in the same manner as now or hereafter authorized by law for acquiring property or property rights in connection with highways, roads and streets within their respective jurisdictions.”

K. S. A. 68-1904 provides that highway authorities may designate and establish controlled access highways as new and additional facilities, or an existing street or highway may be included within such facility, etc.

K. S. A. 68-1905 concerns frontage roads and reads:

“The highway authorities, in order to carry out the purposes and provisions of this act, are authorized to design, designate, establish, regulate, vacate, alter, improve, construct, and maintain frontage roads and to exercise the same juris *376 diction thereof as is authorized over controlled access facilities under this act, and such frontage roads shall be separated from the controlled access facility as may be deemed proper and necessary by the respective highway authorities." (Emphasis added.)

What the legislature has said in substance is that highway authorities may establish controlled access facilities, and when established may so regulate, restrict or prohibit access to such facility as to best serve the traffic for which such facility is intended. Further, that highway authorities to carry out the purposes of the act may provide frontage roads, and when established may so regulate, restrict or prohibit access from the frontage road to the controlled access facility so as to best serve the traffic for which such facility is intended.

Under the foregoing statutes once a controlled access facility has been established by designation or act, the highway authority has absolute power to prohibit access to the main traveled portions of the highway from any source, including the frontage roads.

Viewed in this light 68-1903, supra, authorizing the acquisition of property and property rights seems to have but one meaning. That is, where a controlled access facility is established, all property rights, including the right of access, must be acquired by gift, devise, purchase or condemnation.

An analogous situation is presented in Roberts v. Upper Verdigris Watershed, 193 Kan. 151 , 392 P. 2d 914 . There a watershed district condemned certain land below 1320 feet mean sea level, which covered 60 acres. The land was taken for the permanent storage and temporary detention, either or both, of any waters that are impounded, stored or detained by the detention structure and for the operation of said waters and the inspection and maintenance of said area to be flooded.

The condemning authority contended that only a portion of the area would be covered by water, except in flood periods when water would be temporarily impounded over a greater portion of the land condemned, and sought to have the value of the property determined on the basis of the limited use which would be made of the land temporarily flooded. The trial court upheld the watershed district’s contention, and this court reversed holding that the landowners were entitled to compensation based on the full use which the condemner had the right to exercise over the easement condemned as described in the commissioners’ report.

And so in the instant case where a controlled access facility is *377 established by the State Highway Commission, to which it by statute has the absolute power to prohibit access, the landowners are entitled to compensation to the full extent of the loss which they might eventually suffer. This was the mandate of the legislature when it enacted the controlled access facility statute.

For example, on the facts in the instant case the entrances permitted from the frontage road to the main traveled portions of the highway may be reasonable at present, but future traffic conditions may so change the need for further regulation as to require the closing of such entrances, and provide access to the main traveled portions of the highway at points twenty miles on either side of the abutting property in question. Complaint by the abutting landowner at that time will undoubtedly be met by the Commission contending that the statute gives it such authority because the controlled access highway has already been established.

Cases in other jurisdictions as to whether the landowners of property abutting a frontage road should be compensated or not for loss of direct access fall into three major categories:

(1) Any loss resulting from being placed on a frontage road should be compensated in eminent domain, but the existence of the frontage road should be considered in mitigation of the loss suffered.

(2) Any loss resulting from being placed on a frontage road should be compensated in eminent domain only where accompanied by an otherwise compensable taking of land, and the existence of a frontage road should be considered in mitigation of the loss suffered in those cases.

(3) Any loss resulting from being placed on the frontage road should not be compensated in eminent domain whether land is taken or not.

The court in the instant case has done an about-face by jumping from position No. 1 (supported in Franks v. State Highway Com mission, supra; Atkinson v. State Highway Commission, supra; and Smith v. State Highway Commission, supra) to position No. 3, subject, however, to the qualification that the restriction of access to the abutting property owner by the State Highway Commission must be reasonable. This switch has been accomplished in spite of a statute which defines the state’s policy on frontage roads.

In an extended article entitled frontage roads: to compensate or not to compensate, (Nov.-Dee. 1961) by Frank M. Covey, Jr., in 56 Nw. U. L. Rev. 587 , the author points out, as a result of a survey conducted in the fifty states, the Highway Commission’s practice in a majority of the states compensates the abutting property owner where a frontage road is provided upon a controlled *378 access facility, and most of them base an award of damages on the decline in the market value of property as a result of being placed on the frontage road, or the standard "before and after” valuation test. The author in the beginning paragraphs of his article reviews the advent in 1956 of the federal interstate and defense highway system and shows that the federal share, unlike the ordinary federal aid highways in which the federal government participates in the cost on a fifty-fifty basis, is to be 90 percent. This may have a bearing on why most states compensate their residents for the damage they suffer.

The Kansas legislature in 1953 enacted the controlled access facility statute to enable such highways in Kansas. On a factual situation substantially the same as the instant case, this court in Franks v. State Highway Commission, supra, in December, 1957, construed the statute for the first time. It was elucidated in Atkinson v. State Highway Commission, supra, and broadened in Smith v. State Highway Commission, supra. The access the court was speaking of in these cases was direct access to the main traveled portion of the highway. This construction of the statute—mandatorily requiring the acquisition of property rights, including the right of access of an abutting property owner, to establish a controlled access facility—has stood for over seven years and the legislature has not seen fit to change it. Under these circumstances it must be assumed the legislature has approved such construction placed upon the statute by the court. The authorities on statutory construction so holding are legion.

It is respectfully submitted the judgment of the lower court should be reversed.