causing circuity of travel by ehminating the landowner’s direct access to a limited access highway and constructing a new frontage road for access is not a taking
How later courts described this case
- causing circuity of travel by ehminating the landowner’s direct access to a limited access highway and constructing a new frontage road for access is not a taking
- in inverse condemnation action same rules apply as in condemnation proceeding
Written by the judges who cited it.
Later courts went against this
Disapproved on other grounds by Hales v. City of Kansas City, 248 Kan. 181 (1991)
404 P.2d 934 (1965), disapproved of on other grounds Hales v. City of Kansas City, 248 Kan. 181, 184 , 804 P.2d 347
The opinion
Fontron, J.,
concurring: Under our decision in this case, the question of whether there has been a compensable taking of an abutting owner’s right of access to a controlled access highway or merely a restriction of his right of access thereto under the police power hinges, in the final analysis, on whether the restriction is reasonable. I cannot agree that this is always a question of law to be settled by the trial court. In my view, it is only when it can be said that reasonable minds could not differ that the question becomes one of law for the court to decide; otherwise, the issue of the reasonableness of a restriction is one of fact for a jury’s determination.
*379 I agree that, under the particular facts of this case, no jury issue is presented. The plaintiffs are provided access to the through-traffic lanes of Highway 24 at two points, only 575 feet apart. This access, I believe, can be said to be reasonable as a matter of law; hence, no compensable taking occurred. However, in cases where there is room for honest difference of opinion as to whether the limitation placed on a landowner’s right of access is reasonable, the matter should, in my judgment, be submitted to a jury for decision.
Wertz, J., joins in the foregoing concurring opinion.