The opinion
Hays, J.
I respectfully dissent.
The decision, as announced by the majority opinion, is based upon two propositions: (1) The relocated highway is new, in contrast with a widening of an existing one, and (2) no right of access existed before, hence by the establishment of the new highway no property was taken. The first proposition is substantiated by the record. The second is, in my opinion, a mere assumption; is directly contrary to a long line of Iowa decisions, and is not a sound legal conclusion.
Chapter 306A, which authorizes the establishment of controlled-aecess highways, provides that all or any highways may be so designated. Search the chapter as you will and nowhere therein will you find any distinction between a new and an existing highway. Thus, where the majority opinion states “Insofar as chapter 306A provides there shall be no direct access to a new highway we think it is a proper exercise of the police power * * if by this is meant that the chapter distinguishes between the old and the new, in my judgment such a contention is merely a thought read into the chapter, a thought that is merely an attempted distinction between the instant case and our decisions in Iowa State Highway Comm. v. Smith, 248 Iowa 869 , 82 N.W.2d 755 , and Wilson v. Iowa State Highway Comm., 249 Iowa 994 , 90 N.W.2d 161 . The majority opinion recognizes this fact when it states: “The commission contends the Smith and Wilson precedents have no application here because plain *89 tiffs never had a right of access to the new highway, * * *. The authorities amply support such contention.” It should be noted that the authorities cited do not include any Iowa decisions. Certainly no such distinction can be found in chapter 306A, and, if the majority opinion seeks to rest upon legislative edict, i.t must be judicial, not legislative.
Assuming, and I think rightfully so, that no legislative distinction exists between the taking of a new right of way and the conversion of an existing one, it is my firm conviction that the majority opinion is unsound and contrary to all of our previous highway condemnation cases, and there are many of them.
This case involves the condemnation of real estate for highway purposes, concededly a taking of property. Section 4.1, paragraph 8, Code of 1958, defines land-real estate, as follows: “The word ‘land’ and the phrases ‘real estate’ and ‘real property’ include lands, tenements, hereditaments, and all rights thereto and interests therein, equitable as well as legal.”
We said in Liddick v. Council Bluffs, 232 Iowa 197, 221 , 5 N.W.2d 361 , 378: “Keeping in mind that property is not alone the corporeal thing, but consists also in certain rights therein created and sanctioned by law, of which, with respect to land, the principal ones are the right of user and enjoyment * * * and lesser ones, included in the right of user and enjoyment, are rights of access, light, air, view, * * *, it is clear that the corporeal thing is taken, the property is taken, pro tanto, when any one or more of these rights are taken, of which property consists. And when the right of access to and from the tangible, corporeal thing, by way of adjacent streets, is taken, thereby preventing the use and enjoyment of the tangible property, that tangible property, itself, is taken.”
In Anderlik v. Iowa State Highway Comm., 240 Iowa 919, 924 , 38 N.W.2d 605, 608 , we say, “The basis of the Liddiek decision is that real property consists not alone of the tangible thing but also of certain rights therein sanctioned by law, such as rights of access (ingress and egress), light, air and view, and when such rights are destroyed or substantially impaired * * * there is at least a partial taking of the property in the constitutional sense. The record here shows such an impairment of these rights of plaintiffs.”
*90 In Hansell v. Massey, 244 Iowa 969, 972 , 59 N.W.2d 221, 223 , we say, “His right of access is property which cannot be taken from him without compensation.”
The cases above-cited and others of similar import are not even mentioned in the majority decision. In its brief and argument appellant brushes them aside with the statement that they deal with the conventional type highway and are not applicable here. It is true, they do deal with the conventional or service type highway, and antedate chapter 306A, but quaere?
Then we have two cases involving chapter 306A. In Iowa State Highway Comm. v. Smith, supra, 248 Iowa 869, 876 , 82 N.W.2d 755, 759 , we say, “In accordance with what is said in Wegner v. Kelly, supra, * * * and other authorities above cited [including the Liddiek and Anderlik cases, both supra], we hold defendants are not entitled to access to their properties at any and all points * * *. But they are entitled to reasonable access * * to their properties and the public may not deprive them thereof without just compensation.”
In Wilson v. Iowa State Highway Comm., 249 Iowa 994, 1006 , 90 N.W.2d 161, 168 , we quote from the Smith ease, supra, as follows: “ * * an abutting owner may make only such use of his right of access as reasonable regulations permit’ ” and then say, “Such regulations would not constitute a ‘taking’ entitling the owner to compensation therefor unless it deprived the property of reasonable access to the highway.”
An attempted distinction between these two decisions and the instant case is, as above stated, based upon the theory of “a new highway.”
While not mentioned in the majority decision but discussed in appellant’s brief is the question of the “abutting owner.” It is therein said:
“Just as it follows logically from the purpose of a ‘land service’ road that there must be created in the abutting owners a right of direct access, so it follows logically from the purpose of a ‘traffic service’ road that there need not be created in the abutting owner a right of direct access. * # *
“To hold that there is created in the appellees a right of direct access from their abutting property would be to hold that a right of access which never before existed would be created by *91 the filing of the action to condemn and then, eo instanti, would be extinguished by the actual determination of the action.”
If we assume that a right of access is a creation of the condemnation proceedings being commenced, then it seems to me that it logically follows that in both instances the right is created, even though in the controlled-access type it is, as stated in the brief, eo instanti wiped out. It might materially affect the damages but not the property right. However, the fallacy of this argument is that the right of access is something created, given to the owner by the condemnation. If this be true, then we must repudiate section 4.1, paragraph 8, Code of 1958, and all of our prior highway decisions; they all say that “right of access” is a right inherent in the ownership of land and is a right protected under section 18, Article I of our Constitution. It is true that under chapter 306A a right of access does not exist after the establishment of the highway while under the conventional type of highway all of our decisions say such right does exist. The distinction lies in the fact that in the controlled-aceess type the right of access is taken — is condemned; while in the conventional type the right of access remains intact, only the corporeal thing, the land, being taken. It is my firm conviction that, whether we are dealing with an old or new right of way; with a conventional type or a controlled-access type of highway, the rights of the owner, of the land through which, or along which, the highway passes, in his land are identical. What remains to him, after the condemnation, depends entirely upon what is condemned or taken, and that likewise must his right to compensation be so determined.
The majority opinion places great stress upon the fact that chapter 306A is a police power enactment. Granting that it is, such is not an answer to the question involved here nor is it a sound basis for the decision. “Eminent Domain” is the taking of private property for a public use for which compensation must be given. “Police Power” controls and regulates the use of the property for the public good for which no compensation need be made.
In City of Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 1107 , 184 N.W. 823 , 828, 188 N.W. 921 , 23 A. L. R. 1322, it is said: “This is not to say that, under the guise of police power, *92 the state may do or authorize that which the Constitution expressly or impliedly forbids; * * *. Among those prohibitions is the one which makes private property immune against seizure or condemnation * * * without [just] compensation. * * * There is in such cases ‘no divesting of property rights * * * and the regulation to which the exercise of such rights is thereby subjected is not prevented * # * by the * * * Constitution.’ ”
In Warren v. Iowa State Highway Comm., 250 Iowa 473, 478 , 93 N.W.2d 60, 63 , we say, “The State has clearly declared here [chapter 306A] its intention to proceed through its police powers. This is not a complete answer to plaintiff’s contention, however; the exercise of the police power must be a proper and reasonable one, and must not amount to a taking of property without due process of law.”
In order to deem the instant case a proper exercise of the police power or regulation the majority opinion assumes the major premise that no right ever existed in a new highway before, which I have already discussed, thus seeking to escape the necessity of making just compensation. To deny is not to regulate and is not a valid exercise of the police power. Central States Theatre Corp. v. Sar, 245 Iowa 1254 , 66 N.W.2d 450 .
To hold, as does the majority opinion, that the “establishment of a new controlled-access highway * * * does not deprive the owner of a right of access to his property from the new highway and he is entitled to no compensation for the claimed taking of a right that never existed” is based upon fallacious assumptions and is not sound law. It is not based upon a fact question as to whether, in each particular case, the denial of access is reasonable or unreasonable. See the Smith and Wilson cases, supra. It announces a rule of law applicable in all cases where a new right of way is acquired for such a type of highway without regard to- whether or not it is in fact a “taking” or a “regulation.” If appellant’s requested instruction can be said to embody this idea, then in my judgment the trial court was correct in refusing same.
I realize that the majority opinion cites and relies upon very respectable authority and that I may be very presumptuous in not going along with it as does the majority, however, I am so firmly convinced that, under our decisions, the entire case is *93 built upon assumptions directly in conflict with such decisions that I am unable to accept them. I do not wish to-be considered as contending that the State ma)'' not, by reasonable regulations, deprive a landowner of access to a highway, old or new, touching or crossing his land, without having to make compensation therefor. In fact, the instant case might well be one of reasonable regulation but the requested instruction and the majority decision go far afield from that proposition. It in effect abrogates the protection guaranteed to- an owner of property by the State Constitution. If this is sound, what will the next step be!
II. The opinion also holds the refusal to give a requested instruction, relative to the purpose for which certain cross-examination of expert witnesses was received in evidence, to be reversible error. Both sides introduced the same type of evidence. While I feel that such an instruction might well have been given I fail to see where any prejudice resulted from not giving and certainly would not reverse on this account.
I would affirm the trial court.
Larson, C. J., and Peterson, J., join in this dissent.