Petition for Writ of Certiorari — Comer v. Kentucky Transportation Cabinet Department of Highways

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 199]

PETITIONER

RAYMOND COMER

and MARION CORN

V.

COMMONWEALTH OF KENTUCKY RESPONDENT

TRANSPORTATION CABINET

DEPARTMENT OF HIGHWAYS

PETITION FOR WRIT OF

CERTIORARI TO THE

SUPREME COURT OF KENTUCKY

PETITION FOR WRIT OF CERTIORARI

ROBERT S. MILLER

MILLER, GRIFFIN & MARKS, PSC

700 SECURITY TRUST BUILDING

271 WEST SHORT STREET

LEXINGTON, KY. 40507

(606) 255-6676

ATTORNEYS FOR PETITIONER

(a) QUESTIONS PRESENTED FOR REVIEW

Ze After First English Evangelical

Lutheran Church v. County of Los Angeles,

482 U.S. 308 (1987), may a state cut off a

business property's direct access to a

major checwwshfare, without compensation,

leaving the property's only access to

traffic so long and circuitous that

business can no longer be conducted there?

II. Can compensation be denied after

it has once been determined (and upheld in

the highest appellate court of the state)

that it cannot be denied, and then after a

.

.

judge trial has been held, and then a jury

trial has been held, both based on that

prior determination?

(b) LIST OF ALL PARTIES

1. The Movants are Raymond Comer and

Marion L. Corn.

2. The Respondent is the

Commonwealth of Kentucky.

(c) TABLE OF CONTENTS AND AUTHORITIES

PAGE

(a) QUESTIONS PRESENTED

FOR REVIEW 1

(b) LIST OF ALL PARTIES 2

(da) REPORTS OF OPINIONS 6-7

(e) GROUNDS ON WHICH THE

JURISDICTION OF

THIS COURT IS INVOKED. 7 - 8

(f) CONSTITUTIONAL

PROVISIONS. 8-9

(g) STATEMENT OF THE CASE 9 - 13

(h) Proceedings Below 13 - 22

Commonwealth v.

Jent, 525 S.W.2d 121

(Ky. 1975) 15

Toucey v. New York

Life Ins. Co.,

314 U.S. 118 (1941) 20

Griffin v. Illinois,

351 U.S. 12 (1971) 20

Prior Kentucky Law 22 - 26

Commonwealth of

Kentucky, Department

of Highways v.

Carlisle, 442 S.W.2d

294 (Ky. 1969) 23

DeRossette v.

Jefferson County,

156 S.W.2d 165

(Ky. 1941) 23. 24,

aS

Illinois Cent.

RR, Coa. vy. Ward,

35 S.W.2d 863

(Ky. 1931) 25

Commonwealth v.

Tate, 181 S.W.2d

418 (Ky. 1944) 26

(3) REASONS RELIED ON FOR

THE ALLOWANCE OF THE

WRIT. 26 - 47

Aero Mayflower Transit 27

Co. v. Board of R. R.

Commrs., 332 U.S. 495

(1947)

First English Evangelical

Lutheran Church v.

County of Los Angeles,

482 U.S. 304 (1987) 27, 30,

34, 39,

42, 43

Pumpe v. Green Ba

& Miss Canal Co.,

13 Wall 166 (1872) 27

United States v.

Willow Rivers Power Co.,

324 U.S. 499 (1945) 29

J. Sackman, Nichols'

The Law of Eminent

Domain (3rd Edition 1990

with 1992 pocketpart) 30

Annotation, Supreme

Court's Views as to What

Constitutes 'Taking

Within Meaning of Fifth

Amendment's Prohibition

Against Taking of Private

Property for Public Use

Without Just Compensation,

89 L.Ed. 2d 977 (1986) 31

San Diego Gas & Electric

Company v. City of

San Diego, 450 U.S. 621

(1981) 33,

: 34

Hamilton Bank of

Johnson City v.

Williamson County

Regional Planning

Commission, 729 F.2d 402

(6th Cir. 1984) 33

Davis & Glicksman,

To the Promised Land:

A Century of Wandering

~4-

33,

for the Due Process

and Taking Clauses,

68 Or. L.Rev. 33

393 (1989)

Christianson v.

Colt Industries,

486 U.S. 800, (1988) mS

Southern Railway Co.

v. Clift, 260 U.S.

316 (1922) _ 36

Burkett v. Board of

Ed. of Pulaski Co.,

558 S.W.2d 626 36

(Ky. Ct. App. 1977)

Remington v. Central

Pacific Railroad

Co., 198 U.S. 959 (1905) 36

Messenger v. Anderson,

225 U.S. 1152 (1912) 36

United States v.

United States Smelting

Refining and Mining Co.,

339 U,S. 186 (1950) 36

Nevada v. United States,

463 U.S. 110 (1983) 37

Lummus Company v.

Commonwealth

Oil Refining Co.,

297 F.2d 80 37

(2nd Cir. 1961)

Restatement (Second)

of Judgments (1982)

Brinkerhoff-Faris

Trust & Savings

Company, 281 U.S. 673

(1930)

Pennsylvania Coal Co.

v. Mahon, 260 U.S. 393

(1922)

Kaiser Aetna v.

United States,

444 U.S. 164 (1979)

Palm Beach County v.

Tessler, 538 So.2d 846

(Fla. 1989)

Merritt v. State,

742 P.2d 397

(Idaho 1987)

Three D Corporation v.

Salt Lake City,

752 P.2d 1321

(Utah App. 1988)

State, Commissioner of

Transportation v.

National Amusements,

Inc., 581 A.2d 1353 (N.J.

Super. Ct. App.

Div. 1990)

Commonwealth Dep't of

Highways v. Denny,

385 S.W.2d 776

(Ky. 1964)

39

43

43

(ad) REPORTS OF OPINIONS

The only reported opinion is the

Opinion of the Second Panel of the Court of.

Appeals of Kentucky which will be reported

at _—»«S.W.2d ss (1992). The opinions are

all appended hereto and include (1) the

initial written order of the trial judge

(no reasoning was’ included), (2) the

Opinion of the Court of Appeals of Kentucky

on the first appeal, (3) the oral opinion

of the trial judge after the judge trial,

(4) the oral opinion of the trial judge

after the jury trial, (5) the opinion of

the Second Panel of the Court of Appeals of

Kentucky which is later to be reported.

Actions by the Supreme Court of Kentucky

were not by opinion, but are also appended.

(e) GROUNDS ON WHICH THE JURISDICTION

OF THIS COURT IS INVOKED:

(i) The decree of the Supreme Court

of Kentucky sought to be reviewed

(upholding the Opinion of the Second Panel

of the Court of Appeals of Kentucky) was

rendered on the 1st day of April, 1992.

(iv) Jurisdiction is conferred on this

Court by 28 U.S.C. §1257.

(f) CONSTITUTIONAL PROVISIONS

Amendment V to the Constitution of the

United States provides:

No person shall be held to

answer for a capital, or

otherwise infamous crime,

unless on a presentment or

indictment of a Grand Jury,

except in cases arising in

the land or naval forces, or

in the Militia, when in

actual service in time of

War or public danger; nor

shall any person be subject

for the same offence to be

twice put in jeopardy of

life or limb; nor shall be

compelled in any criminal

case to be a witness against

himself, nor be deprived of

life, liberty, or property,

without due process of law;

nor shall private property

be taken for public use,

without just compensation.

Section 1 of Amendment XIV to the

Constitution of the United States provides:

All persons born or

naturalized in the United

States and subject to the

jurisdiction thereof, are

citizens of the United

States and of the State

wherein they reside. No

State shall make or enforce

any law which shall abridge

the privileges or immunities

of citizens of the United

States; nor shall any State

deprive any person of life,

liberty, or property,

without due process of law;

nor deny to any person

within its jurisdiction the

equal protection of the

laws.

(g) STATEMENT OF THE CASE

Raymond Comer and Marian Corn each

owns a small tract of land in Lexington,

Fayette County, Kentucky. On each tract

stands a building which was formerly used

by its owner for commercial purposes. Each

owner has devoted his entire financial

resources, and the entire energy of his

adult life -- over a period exceeding 40

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evo

years -- to building and maintaining the

businesses operated there. Each property

was very valuable (and each business was

very successful) because it was accessible

from South Broadway Street in Lexington,

the highly travelled street on which each

abutted, by a less-than-a-hundred-foot

drive on ae service road called Scott

Street.

The Kentucky Highway Department then

changed the grade and location of South

Broadway, so that at the point Messrs. Corn

and Comer had access to it, there is no

longer access: Scott Street became a cul-

de-sac where it used to intersect South

Broadway.

Now, a driver driving north on South

Broadway who caught a glimpse of one of

these former commercial properties would

have to drive 8/10ths of a mile to get to

them -- making three right turns (if he or

-10-

she could find them) through industrial

neighborhoods, across several railroad

crossings, taking what the Commonwealth

modestly describes as a "circuitous" route

to get back to the service road (Scott

Street) and these properties. Messrs. Corn

and Comer have always called this a "near

impossibly" circuitous route.

Any potential customer driving to the

south on South Broadway would have to

guess which left turn could be taken (the

first three possibilities are dead end

streets), and then drive some mile and a

half, through similar neighborhoods, to get

to this property. This route is even more

nearly impossible to traverse.

A driver wanting to get to these

properties from any point to the west would

have to choose either the southern (1%

Miles) or the northern (8/10ths mile)

route.

-ll-

Eee

The uncontradicted proof at _ the

neaxine before the trial judge (and later

before the jury by the witnesses for both

sides) was that the value of these

properties was so devastated by this

impossible circuity that it could no longer

be used for commercial purposes.

It was proved at the threshold hearing

before the trial judge (on the issue of

whether "reasonable access" was retained

after South Broadway's reconstruction) that

these properties could no longer be used

for their current businesses, or for any

commercial use. Based on that testimony,

and upon the trial judge's judicial notice

of this area, he determined the obvious --

that “reasonable access" was not retained.

At the trial on the merits, where the

same issue was a part of the "highest and

best use" analysis of each expert witness,

-12-

the testimony was perhaps even

dramatic.

more

The Commonwealth's witness, for

example, testified:

Messrs. Corn and Comer's expert said:

We better go take a

look at it and see

what the highest and

best use of it is

now...[{I]n my opinion,

it's a different kind

of property...so we've

got to find some other

use for it.

The hotel property is

no longer the highest

and best use. 4 Be

not a hotel and bar.

It's a vacant lot.

The cComer's' property

is no longer suitable

for a bar and a

nightclub. ze 48 (8

vacant lot. The

building doesn't

contribute anything to

the value of it, and

it's just a vacant

lot. Now, a vacant

lot, you can park cars

on it and that's all I

can figure that it

would be good for at

this time.

(h) Proceedings Below

-13-

This case was filed in the Fayette

Circuit Court. The first Question raised

here was detailed in paragraph 11 of the

Complaint, which Complaint begins on the

first page of the record.

The parties stipulated much of the

physical facts involved in this case,

including an aerial map which showed the

various routes the driver would now have to

take to get to the Corn and Comer

properties. The Commonwealth filed a

motion to dismiss Corn and _ Comer's

Complaint, which was heard by Judge N.

Mitchell Meade of the Fayette Circuit

Court. Judge Meade determined (as a matter

of law) that "mere circuity" of travel --

no matter how difficult and how flevastating

-- does not give rise to a claim of taking

without due process.

This case was then appealed to the

Court of Appeals of Kentucky the first

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a

time. The Notice of Appeal appears on page

76 of the record. It was heard by a panel

composed of Judges Dyche, Elswick and

Lester ("the First Panel"). The first

Question raised by this Appeal was

determined favorably to Messrs. Corn and

Comer; that is, Judge Meade was reversed.

The First Panel relied on Commonwealth v.

Jent, 525 S.W.2d 121 (Ky. 1975), one of a

substantial line of authority of decisions

of the highest court of Kentucky, providing

that the state's police power does not

extend to taking away a property owner's

access to the highway abutting his or her

property without compensation, save and

except where the state leaves the property

owner "reasonable access" after the highway

change is made.

The Commonwealth then moved the

Kentucky Supreme Court for Discretionary

Review, which was denied.

-15-

OE

The case then returned to the Fayette

Circuit Court for a determination, FIRST,

whether “reasonable access" had been left

to the Corn and Comer for their commercial

properties; and then, if not, SECOND, for a

trial by jury on their damages. As noted,

a hearing was held by the Fayette Circuit

Court on the FIRST issue; and Judge Meade

determined (as was obvious) that

"reasonable access" had in fact been taken

from Corn and Comer. The nearly impossible

circuity was found to be devastating --

after expert proof was heard about the

effects of the agreed physical facts. The

Commonwealth appealed; and after the matter

was briefed, the Court of Appeals dismissed

the appeal as premature.

The case then returned to the Fayette

Circuit Court for a trial by jury, which

(as noted) was then held; and Messrs. Corn

and Comer were awarded substantial damages.

-16-

-On appeal, the Court of Appeals, sitting as

a panel composed of Judges Howerton,

Schroder, and Wilhoit ("the Second Panel"),

determined as a matter of law that where

property is destroyed solely by reason of

the "circuity of travel" of the traveling

public being required, that there can be no

damages awarded.

One portion of the Second Panel's

Opinion deserves special attention. The

following true statement of facts had been

made by the Commonwealth?, and never

disputed (because it could not be disputed)

by Messrs. Corn and Comer:

Scott Street now being the

route,’'’one travels to and

from Appellants' properties

is the same street one

traveled in order to enter

the parking lots next to

Appellants' properties prior

to construction. The

parking lots are _ located

lappellate Briefs are not assigned

page numbers in the record.

-17-

fe

exactly now as they were

before construction. Also,

Scott Street has the same

entrance and exit way to

Appellants’ properties as it

did before construction.

Nonetheless, the Second Panel made the

following, inaccurate statement about the

decision of the First Panel:

The landowners were

[granted] the right’ to

demonstrate by evidence, if

they could, that Scott

Street does not meet modern

vehicular requirements, or

that it was impassable at

certain times, or that it

provided insufficient

driveway space for

commercial vehicles, or that

it in some way other than

circuity was not reasonable

access.

As this Court can see from the Opinion

of the First Panel, the landowners were

granted no such "right." As the

Commonwealth had correctly said, neither

Scott Street nor the driveways were altered

in the slightest; the change was simply

that to get to the entrances off of Scott

-18-

| ieee ial ia

Street, a driver on South Broadway had to

take one of two enormously circuitous

routes. Our argument had been, and had

been only:

The Property owners would

have shown the near

impossibility of getting to

their properties by the

circuitous route left to

them, and the devastation

caused to their businesses

(or any business at that

location) which rely on

customer traffic.

The true holding of the First Panel was

acknowledged by the Commonwealth in its

Motion for Discretionary Review to the

Supreme Court after the First Panel's

decision. It should be noted that

underlining in the following quotation is

in the original, and was not added by us:

The property in question was

moved from a direct route to

the property to a different

route. There is nothing

more than a diversion of

traffic or a circuitous

route of travel.

-19-

—— ——————

x*kerke*«ter

The Court of Appeals clearly

acknowledges that the

Respondents! complaint is

nothing more than a

circuitous route of travel

after construction of the

railroad underpass. It was

further clear to the Trial

Court that the claim was for

nothing more than circuitous

access of which the Trial

Court dismissed the claim

without hesitation since

circuitous access is not a

valid claim.

In short, it was simply indulging ina

fiction? to suggest that Messrs. Corn and

2 It is a modest criticism to

describe this incorrect repetition of the

First Panel's Opinion as "indulging in [a]

mere fiction." Toucey v. New York Life

Ins. Co., 314 U.S. 118, 140 (1941). The

Second Panel's second fiction, that its

ruling is the traditional law of Kentucky,

recalls the often-quoted concurrence of

Justice Frankfurter in Griffin v. Illinois,

351 U.S. 12, 26 (1971) ("We should not

indulge in the fiction that the law now

announced has always been the law. . ."),

except that Justice Frankfurter was talking

about situations where there had been no

law declared, whereas here the Second Panel

reversed prior law while declaring that it

was upholding it.

-20-

Comer might complain that Scott Street had

become too narrow, or was temporarily

closed, or that the entrances from Scott

Street were altered -- or that anything was

involved more than the "circuitous route"

of 8/10ths of a mile or one mile and a

half, with twists, turns and railroad

tracks.

At that point, Messrs. Corn and Comer

moved for Discretionary Review to the

Supreme Court of Kentucky, arguing:

The taking itself is a

gross violation of the

Movants! right to due

process -- recognized

for a century by this

Court. It was far

worse to make them

spend tens of

thousands of dollars

to go through a

massive judicial

process, only to hear

a Second Panel say

that the determination

of the First Panel was

erroneous, and had

merely offered them a

"right" to prove facts

they never alleged and

-21-

OE —

knew were false. That

is not justice under

the law.

This was the first time after the

first Notice of Appeal when it was

necessary for Messrs. Corn and Comer to

raise the first Question raised here; and

this was, of course, the first time that

the matter of the Second Panel's reversal

of the First Panel (the second Question

here) was mentioned. The Motion for

Discretionary Review has not been assigned

a page number in the record.

The Motion for Discretionary Review

was denied.

The Prior Kentucky Law

It is of course irrelevant to a proper

determination of the content of the Fifth

and Fourteenth Amendments to the

Constitution of the United States, whether

or not Kentucky has had a distinguished or

-22-

‘undistinguished history of analysis of such

issues prior to this case. This Court will

make its own determinations directly under

the Constitution, and the authorities of

this Court. However, it is not without

interest that the Commonwealth agreed, even

in the Court of Appeals before the Second

Panel, that the case of Commonwealth of

Kentucky, Department of Highways Vv.

Carlisle, 442 S.W.2d 294 (Ky. 1969),

summarized the test on this subject -- that

circuity may be forced on a property owner

only “within reasonable limits." Id. at

297.

The Commonwealth was making - no

gratuitous sunomanton: since there was no

authority supporting the view adopted by

the Second Panel. No authority whatever.

The Second Panel's assertion that

DeRossette v. Jefferson County, 156 S.W.2d

165 (Ky. 1941), is the case "most similar

-23-

Fite iaineene eee

to the case at bar" is instructive. The

Commonwealth did not even cite DeRossette

in its original brief to the Second Panel -

- while Messrs. Corn and Comer had, in

fact, cited DeRossette as a leading

authority (among a dozen other cases) in

their own original Brief to the First

Panel. In truth, the DeRossette property

owner retained access to every street which

abutted his property. In DeRossette, the

lower portion of one of the abutting

streets was cut off, so that a driver

leaving the restaurant parking lot would

have to swing his car around a few extra

feet in the parking lot to get to the exit

at the upper end of the lot. "[T]here may

be a slight inconvenience to appellant and

tenants in journeying southwardly," said

the Kentucky court in DeRossette.

We cited DeRossette -- and continued

in the Supreme Court of Kentucky to rely on

-24-

—eSE" ee aa ee ee

-jt -- because it cited the "typical case of

an unreasonable obstruction," to wit:

ois o. v. Ward, 35 S.W.2da

863 (Ky. 1931), which is exactly like this

case. To quote the DeRossette court, one

of the ways to get to and from the Ward

farm was blocked -- "compelling owners 'to

teravel..-.ifn the opposite

direction...whenever it was necessary to

travel to the west, north, and south of

their residence located on the farm.'"

DeRossette at 167, quoting Ward at 864.

Ward is exactly this case. As is perfectly

obvious, the Second Panel overruled a long

line of Kentucky authority.

Ward is especially extraordinary

because the argument made by the Second

Panel was in fact made by the appellant

there, and explicitly rejected by the

Kentucky high court:

-25-

The fact that some other

means of access to the

property may be available

affects merely the amount,

and not. the right to the

recovery of damages.

Id. at 865.

There was plenty of longstanding

Kentucky authority for the proposition that

there can be compensation even though some

access remains. The First Panel was not

alone. See, e.g., Commonwealth v. Tate,

181 S.W.2d 418, 420 (Ky. 1944) ("Access

from the west is impossible and from the

east has been rendered more difficult.")

(3) REASONS RELIED ON FOR THE ALLOWANCE OF

THE WRIT.

For reasons which are _ primarily

cultural and political, this Court has not

often had the occasion to consider the

right of property owners to have reasonable

access to the roadways on which their homes

or businesses lie. That is in large part

-26-

‘because states and localities have built

(and altered) most of the streets and

highways of America. See Aero Mayflower

Transit Co. v. Board of R.R. Commrs., 332

U.S. 495, 503 (1947) ("The state builds the

highways and owns them. . . It is

immaterial that the state receives Federal

aid for state road construction .. .")

However, when this Court revolutionized the

fundamental law upon which this action is

based in the case of First _English

Evangelical Lutheran Church v. County of

Los Angeles, 482 U.S. 304 (1987), it

returned to the 1872 case of Pumpelly v.

Green Bay & Miss. Canal Co., 13 Wall 166

(1872) to note its long-standing view of

the "very curious and unsatisfactory

result" obtained where formalistic

distinctions deprived owners of the use of

their property. 482 U.S. at 316-317

quoting 13 Wall at 177-188. The circle

-27-

(and the irony) becomes complete when one

notes that in Pumpelly (which was decided

before the 14th Amendment applied these

rules to states) Justice Miller observed:

We are not unaware of the

numerous cases in the state

courts in which the doctrine

has been successfully

invoked, that for a

consequential injury to the

property of the individual

arising from the prosecution

of improvements of roads,

streets, rivers and other

highways for the _ public

good, there is no redress;

and we do not deny that the

principle is a sound one in

its proper application, to

many injuries to property so

originating. And when, in

the exercise of our duties

here, we shall be called

upon to construe other state

constitutions, we shall not

be unmindful of the weight

due to the decisions of the

courts of those States. But

we are of opinion that the

decisions referred to have

gone to the uttermost limit

of sound judicial

construction, in favor of

this principle, and in some

cases beyond it.

-28-

eT

As late at 1948, however, this Court

continued its adherence to formalistic

notions in riparian rights cases, still

noting their similarity to highway cases,

where unrestricted "police powers" were

allowed by many states to impede the use of

private property without compensation.

Thus in United States _v. Willow Rivers

Power Co., 324 U.S. 499 (1945) Justice

Jackson wrote:

Operations of the Government

in aid of navigation

ofttimes inflict serious

damage or inconvenience or

interfere with advantages

formerly enjoyed by riparian

owners, but damage alone

gives courts no power to

require compensation where

there.''is not an actual

taking of property. . . The

uncompensated damages

sustained by this riparian

owner on a public waterway

are not different from those

often suffered without

indemnification by owners

abutting on public highways

by land. It has been held

in nearly every state in the

Union that "there can be no

-29-

recovery for damages to

abutting property resulting

from a mere change of grade

in the street in front of

it, there being no physical

injury to the - property

itself, and the change being

authorized by law."

Id. at 510-511.

The results of this Court's poll of

the various states would have changed, had

the survey been taken even_- shortly

thereafter, even before this Court began to

change itself. This case will be decided

by a vote of the Justices today, and not a

vote of the states before (or after) First

English Lutheran Church, but it is worth

considering the trend that had already

occurred, by making a review of the cases

collected by J. Sackman, Nichols' The Law

of Eminent Domain (3rd Edition 1990 with

1992 pocketpart), particularly Sections

6.09-6.11, 6.21[3] and 6.34-6.36.

Formalistic distinctions (particularly

-30-

"police power" deprivations distinguished

from physical "takings") had for the most

part disappeared from state adjudication of

these issues.

See also Annotation, Supreme Court's

Views as to What Constitutes ‘'Taking,'

Within Meaning of Fifth Amendment's

Prohibition Aqainst Taking of Private

Property for Public Use Withcut Just

Compensation, 89 L. Ed. 2d 977 (1986),

which summarizes:

In several early or

relatively early cases, the

United States Supreme Court

indicated that government

actions which do not

directly encroach upon

private property, but which

have merely "incidental" or

"consequential" effects on

such property, do not

constitute a "taking" of

that property within the

meaning of the just

compensation clause.

zx zk & kk

CAUTION: In view of the

very different standards

-3 1-

applied by the more recent

decisions described in this

section, and the apparently

contradictory holdings of

some of the cases in §4[a],

infra, it would seem that

the distinction between

direct and incidental

effects on property may no

longer be a valid criterion

in determining whether there

has been a "taking" for

purposes of the just

compensation clause.

Id. at 991-992

Past history aside, the underlying

support of the "very curious and

unsatisfactory" past was undermined by

Justice Brennan's dissent in San Diego Gas

& Electric Company v. City of San Diego,

450 U.S. 621 (1981):

It is only logical, then,

that government action other

than acquisition of title,

occupancy, or physical

invasion can be a "taking,"

and therefore a de facto

exercise of the power of

eminent domain, where the

effects completely deprive

the owner of all or most of

his interest in the

property.

-32-

ee

ig. at 653.

It was quickly noted that Justice

Brennan's view on this subject "represented

the views of the majority of the Court on

this issue," which had not prevailed as the

majority opinion in San Diego Gas &

Electric only because the case was decided

on a finality issue. See, Hamilton Bank of

Johnson City v. Williamson County Regional

Planning Commission, 729 F.2d 402, 408 (6th

Cir. 1984). The seminal importance of the

Brennan dissent is also widely recognized

by commentators, as, for example, in Davis

& Glicksman, To the Promised _ Land: A

Century of Wandering and a Final Homeland

for the Due Process and Taking Clauses, 68

Or. L.Rev. 393 (1989).

The last cited article, despite (or

because of) its persistent criticism of

"the general movement of [this] Court to a

jurisprudence more protective of property

-33-

rights," can be taken as a reliable source

to declare the dramatic impact on this

whole body of law of the cases which began

with San Diego Gas & Electric. 68 Or.

L.Rev. at 430 - 431. Say the commentators:

All debate mercifully and

abruptly ended with the

Court's opinion in First

English Evangelical Luthera

Church v. County of Los

Angeles, in which a majority

opinion by Rehnquist removed

the quotation marks from the

word "taking" by holding

that all takings -- physical

or regulatory o= were

governed by the fifth

amendment takings clause and

required "38 8 ¢

compensation."

Id. at 429.

We do not believe that this Court will

need to go far to find the appropriate

definition of a "taking" to be applied in

cases like this one. It is the traditional

Kentucky test; and it has already been

applied by a trial judge in this case -- as

directed by the First Panel. We have

-34-

‘stated a second Question in this case,

which seeks to give preclusive effect on

all matters determined by the First Panel.

We did that because we sense in

Christianson v. Colt Industries, 486 U.S.

800, 817-819 (1988), at least an

ambivalence in this Court's attitude toward

the old rule which would have denied that

effect. That case involved a matter

litigated wholly within the _ federal

judicial system, which fact may explain the

Court's firmer than usual treatment of the

“law of the case." Perhaps a new rule is

called for, however, when it was not

arguable or "concluded that the prior

decision was ‘clearly wrong,'" and where

the case involves “a state of affairs

[which] would undermine public confidence

-35-

in our judiciary. . ."° Id. This case

3 The same distinction is made when

this Court deals with determinations of the

state courts as is made among

determinations of federal courts. This

Court recognizes determinations of state

courts which are "res judicata and

precluded dispute," and does not recognize

determinations made by state courts which

are properly characterized as merely "the

law of the case." Souther Llway Co. v.

Clize, 260 U.8. 316, 33959 (19382). ("The

prior ruling may have been followed as the

law of the case, but there is a difference

between such adherence and res judicata;

one directs discretion, the other

supersedes it and compels judgment. In

other words, in one it is a question of

power; in the other of submission.").

There is authority for the proposition

that Kentucky "incorporates the doctrine of

res judicata into the law of the case

rule." Burkett v. Board of Ed. of Pulaski

Co., 558 S.W.2d 626, 628 (Ky. Ct. App.

1977). We are painfully aware that this

Court, speaking through Justice Holmes,

relegates constitutional status to prior

opinions only under’ the traditional

doctrine of res judicata, and not the

typical "law of the case" situation. See,

e.g., Remington v. Central Pacific Railroad

Co., 198 U.S. 959 (1905); Messenger v.

Anderson, 225 U.S. 1152 (1912). See also

United States vs. United States Smelting

Refining and Mining Co., 339 U.S. 186

(1950).

We believe, frankly, that in the

context of this case, what was done by the

Second Panel to the decision of the First

-36-

“would be a perfect one to adopt that rule.

Irrespective of preclusive effect of

the First Panel's determination on the

legal test for a "taking," that case and

Panel, and its implications or the

expectations and livelihood of Messrs.

Comer and Corn, rises to such a high level

of shocking behavior that it should be

protected by the Constitution. The effect

on them is no less than in the case of

Nevada _v. United States, 463 U.S. 110

(1983): “But what we said with respect to

this doctrine more than 80 years ago is

still true today; it ensures ‘the very

object for which civil courts have been

established, which is to secure the peace

and repose of society by the settlement of

matters capable of judicial determination.

Its enforcement is essential to the

maintenance of social order; for, the aid

of judicial tribunals would not ke invoked

for the vindication of rights of person and

property, if . . . conclusiveness did not

attend the judgments of such tribunals.'"

463 U.S. at 129. The doctrine of res

judicata (more accurately, claim

preclusion) is in the federal system

applied between circuits in actions that

are pending at the same time. Lummus

Company v. Commonwealth Oil Refining Co.,

297 F.2d 80 (2nd Cir. 1961), a case

explicitly adopted by the Restatement of

Judgments (Second) (1982) at pages 141-142.

See also Brinkerhoff-Faris Trust & Savings

Company, 281 U.S. 673 (1930).

-37-

|

all the prior Kentucky cases state the only

appropriate rule to be adopted by this

Court to define the line where compensation

is required: "Reasonable access" must be

left after the street improvement. We

suggest that the case presently before the

Court is a typical one, but one where it is

perfectly obvious that, in the language of

Pennsylvania Coal Co. v. Mahon, 260 U.S.

393 (1922), the state's action "goes too

far," 260 U.S. at 415; and where, in the

language repeated in Kaiser Aetna v. United

States, 444 U.S. 164 (1979), Messrs. Corn

and Comer have had ripped away from them

their “reasonable investment backed

expectations." Id. at 175. In the place

of "too far" in this case, one can fairly

say “so far that the state has put the

property owners out of business, converted

their commercial properties to a parking

lot or warehouse." In the place of merely

=-38-

losing "reasonable investment backed

expectations," one can fairly say in this

case that the state has confiscated "a

lifetime of investment and plans and hard

work." The Commonwealth of Kentucky in

this case did not merely act

"unreasonably;" it acted egregiously.

Since this Court's Opinion in First

English Evangelical Lutheran Church, some

state courts have done pretty well on their

own, and have applied the traditional

Kentucky test. For example, the Florida

court in Palm Beach County v. Tessler, 538

So.2d 846 (Fla. 1989), considered the case

of commercial property on a major public

road, where norie of the owner's property

was taken, but a highway’ improvement

blocked off the normal access, creating "an

indirect winding route of some 600 yards

through a primarily residential

neighborhood." Id. at 847. This was

-39-

a i

described by the Court as "a tedious and

circuitous route to reach their business

premises," and thus "more than = an

inconvenience." Id. at 850. The Court

applied the traditional Kentucky test:

There is a right to be

compensated through

inverse condemnation

when governmental

action causes a

substantial loss of

access to one's

property even though

there is no physical

appropriation of the

property itself. It

is not necessary that

there be a_ complete

loss of access to the

property. However,

the fact that a

portion or even all of

one's access to an

abutting road is

«* destroyed does not

constitute a taking

unless, when

considered in light of

the remaining access

to the property, it

can be said that the

property owner's right

to access was

substantially

diminished.

-40-

Id. at 849.

In such a case as that one (and this

one):

As a fact finder, the judge

resolves all conflicts in

the evidence. Based upon

the facts as so determined,

the judge then decides as a

matter of law either the

landowner has incurred a

substantial loss of access

by reason of the

governmental activity.

Should it be determined

that a taking has occurred,

the question of compensation

is then decided as in any

other condemnation

proceeding.

Id. at 850.

The case of Merritt v. State, 742 P.2d

397 (Idaho 1987) is another useful one. In

that case the initial opinion of the court

determined that "the remaining vehicular

access being reasonable, there was_ no

taking of the Merritt property which would

entitle him to compensation." The retained

access was "reasonable," because the

-41-

highway improvement “might require a car .

- - to drive an extra block." Id. at 400.

Before the mandate issued in Merritt,

however, First English Evangelical Lutheran

Church was decided; and a motion for

rehearing filed. The majority in Merritt

noted the applicability of this Court's

decision, “and finds it to be factually

distinguishable as to the extent of the

denial of use of the property." Id. at

405. The difference between "an extra

block" (Merritt) and "600 yards [of]

tedious and circuitous" driving (Tessler)

now becomes the focus of right-thinking

state courts -- just as it used to be in

Kentucky. Other courts have also noted

the applicability of First English

Evangelical Lutheran Church to "circuitous

travel" cases. See, for example, Three D

-42-

Corporation v. Salt Lake City, 752 P.2d

1321, 1323 (Utah App. 1988).

A final state court case needs to be

cited, again, not because this Court is in

the business of counting heads, but because

of the irony’ involved. In State,

Commissioner of Transportation v. National

Amusements, Inc., 581 A.2d 1353 (N.J. Super

Ct. App. Div. 1990), the New Jersey Court,

actually citing the then-existing Kentucky

law, decided a case correctly according to

the principles of First English Evangelical

Lutheran Church:

[L}imitation of access, so

long as reasonable access to

the highway system remains,

is not' a taking by eminent

domain, but is accomplished

under the police power, and

is not compensable.

Commonwealth, Dep't of

Highways Vv. Denny, 385

S.W.2d 776, 777 (Ky. 1964).

x * ®

Denny . . . focuses

the inquiry not upon

-43-

direct access, but

rather upon the

reasonableness of the

alternative access. .

Id. at 1355 - 1356. ;

In the defense of Kentucky's

traditional “reasonable access remaining"

analysis, we again cite the Davis &

Glicksman article, which, for all its

hostility toward this Court's wide

recognition of property rights, plainly

supports the application of Kentucky's

traditional test of this case:

As noted in the introduction

to this Article, taking

clause jurisprudence has

always emphasized individual

impact. In determining when

regulation has "gone too

rae,” the Court has

consistently emphasized that

the "Fifth Amendment

guarantee ° ° , {is}

designed to bar Government

from forcing some people

alone to bear public burdens

which, in all fairness and

justice, should be borne by

the public as a whole." The

presence or absence of

-44-

reciprocity of advantage is

as powerful a tool as the

Court has at its disposal to

make such a judgment. While

other factors can be

helpful, nothing goes more

to the heart of the

individual impact question

than whether the restriction

is part of a larger

regulatory fabric that

brings benefits as well as

burdens. to those whose

property it affects.

Id. at 457.

The Second Panel of the Court of

Appeals of Kentucky, when it misstated the

contents of the Opinion of the First Panel,

was presumably making some sort of effort

to explain why it did not feel bound by the

law already reaffirmed in this particular

case. At footnete 3 above we acknowledge

that this Court might be disinclined to

make "the law of the case" a binding rule

at this time. The inaccurate statement of

the First Panel's Opinion, however,

Suggests a final point worth making on the

-45-

first Question raised: It is suggested by

the Second Panel that the Fifth and

Fourteenth Amendments to the Constitution

of the United States might be offended if

Scott Street, or the driveway off of Scott

Street into the Comer or Corn properties,

were made more narrow -- or less "modern."

The Constitution would be offended,

suggests the Second Panel, by a narrow

access -- but is not offended by a "merely"

long, circuitous access. A McDonalds

might without compensation be conpeiied to

send its customers 15 miles through six

neighborhoods for a hamburger, but not

through a 15 foot entranceway. That would

be "curious and unsatisfactory"

constitutional law indeed.

Messrs. Corn and Comer are, in short,

entitled to have their livelihoods

restored.

-46-

ei

Respectfully submitted,

MILLER, GRIFFIN & MARKS,

P.S.C.

700 Security Trust Building

271 West Short Street

Lexington, Kentucky 40507

Yh

ROBERT S. MILLER

ATTORNEYS FOR APPELLANTS

BY

rsm/pldgs/comer-2.app

-47-

FAYETTE CIRCUIT

CIVIL BRANCH

SECOND DIVISION

RAYMOND COMER

and MARION CORN PLAINTIFFS

Vv. ORDER OF NO. 87-CI-4114

DISMISSAL

COMMONWEALTH OF KENTUCKY,

TRANSPORTATION CABINET,

DEPARTMENT OF HIGHWAYS DEFENDANT

keke kkk kkk

This cause having come on for hearing

on Defendant's Motion to Dismiss, the

parties having filed Memorandums of Law and

having made oral arguments, and the Court

being otherwise sufficiently advised;

IT IS HEREBY ORDERED AND ADJUDGED as

follows:

Ls It appearing from the oral

arguments that the parties are in agreement

on certain factual matters that may be of

assistance to any appellate court that may

review this Order, the parties are directed

to file a Stipulation of Facts;

2. Defendant's Motion to Dismiss is

sustained.

Dated this the 15th day of June, 1988.

/s/N. Mitchell Meade

JUDGE, FAYETTE CIRCUIT COURT

SECOND DIVISION

TO BE ENTERED:

NOTICE OF ENTRY WAIVED:

/s/Thomas C. Marks

ATTORNEY FOR PLAINTIFFS

/s/Louis Kawaja

ATTORNEY FOR DEFENDANT

RENDERED: April 20, 1989; 10:00 A.M.

COMMONWEALTH OF KENTUCKY

COURT OF APPEALS

NO. 88-CA-1345-MR

RAYMOND COMER

and MARION CORN APPELLANTS

V. APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE N. MITCHELL MEADE, JUDGE

CIVIL ACTION NO. 87-CI-4114

COMMONWEALTH OF KENTUCKY,

TRANSPORTATION CABINET,

DEPARTMENT OF HIGHWAYS APPELLEE

VACATING AND REMANDING

x* k* & &

REFORE: DYCHE, ELSWICK and LESTER, Judges.

LESTER, JUDGE. This is an appeal from an

order in an inverse condemnation action

dismissing the complaint.

Raymond Comer and Marion owned certain

properties fronting on South Broadway in

Lexington upon which they operated a hotel,

lounge, and restaurant. In 1987, the

Department of Highways constructed a

railroad underpass, the effect of which was

to eliminate direct access to appellants'

land from Broadway and cause that ingress

and egress to be lengthened by eight tenths

of a mile over route which, at least in

part, utilized Scott Street. None of the

appellants' tracts were taken for the

project and their complaint centers around

the circuitous access.

Subsequent to the--filing of the

complaint the appellee moved to dismiss and

memoranda was ordered to be filed by both

parties supporting their respective

positions. No evidence was adduced but

oral arguments were heard by the court at a

regular motion hour after which the

following order was entered:

IT IS HEREBY ORDERED AND ADJUDGED as

follows:

hs It appearing from the

oral arguments that’ the

parties are in agreement on

certain factual matters that

-2-

may be of assistance to any

appellate court that may

review this Order, the

parties are directed.to file

a Stipulation of Facts;

- Defendant's Motion to

Dismiss is sustained.

The main thrust of this appeal centers

around the reasonableness of the access to

appellants' businesses or, to put it

another way, is the additional eight tenths

of a mile from Broadway such-= an

unreasonable span as to warrant

compensation. One of the most recent

authorities upon the subject of

unreasonableness of access following

condemnation where none of the

complainant's land was actually taken is

Commonwealth, Department of Hiqhways_ v.

Jent, Ky., 525 S.W.2d 121 (1975), where the

court pointed out:

In Commonwealth, Department

of Highways v. Carlisle,

Ky., 363 S.W.2d 104, we held

that the only access right

-3-

that the landowner has is a

right of reasonable access

to the highway system. In

Commonwealth, Department of

Highways v. Adkins, Ky., 396

S.W.2d 768, we held that,

conversely, the landowner

cannot be deprived of

reasonable access without

just compensation. The

question of reasonableness

of access must be dealt with

on a case-by-case basis.

Ordinarily, whether the

landowner has been deprived

of reasonable access is a

question of law which should

be resolved by the court,

but in order for it to be

resolved at all it is

indispensable that the facts

be disclosed. Adkins,

Supra.

From the foregoing, we discern that it is

the trial court's function to determine

what is reasonable access and in order to

do so evidence must be heard. In the case

at bench, although it might be assumed that

in dismissing the complaint the court

viewed appellants' ingress and egress to be

reasonable, it is axiomatic that the court

speaks only through its orders, opinions or

-4-

judguents and we have no specific finding

on the prime issue of the litigation.

Moreover, Raymond and Marion argue that

they are entitled to present evidence and

it is the mandate of Jent that they be

allowed do so.

The judgment is vacated and the cause

remanded for proceedings consistent

herewith.

ALL CONCUR

ATTORNEYS FOR ATTORNEY FOR

APPELLANTS APPELLEE

Hon. Robert S. Miller Hon. Louis Kawaja

Hon. Thomas C. Marks Lexington, Ky.

Miller, Griffin & Marks,

P.S.C.

Lexington, Kentucky

SUPREME COURT OF KENTUCKY

89-SC-386-D

(88-CA-1345-MR)

TRANSPORTATION CABINET,

DEPARTMENT OF HIGHWAYS

COMMONWEALTH OF KENTUCKY MOVANT

V. FAYETTE CIRCUIT COURT

87-CI-4114

RAYMOND COMER, ET AL. RESPONDENTS

TRANSPORTATION CABINET,

DEPARTMENT OF HIGHWAYS

ORDER DENYING MOTION FOR

DISCRETIONARY REVIEW

The motion for review of the decision

of the Court of Appeals is denied.

Stephens, C. J., not sitting.

ENTERED August 30, 1989.

/s/ William M. Gent

Acting Chief Justice

FAYETTE CIRCUIT

CIVIL BRANCH

SECOND DIVISION

RAYMOND COMER

and MARION CORN PLAINTIFFS

V. NO. 87-CI-4114

COMMONWEALTH OF KENTUCKY,

TRANSPORTATION CABINET,

DEPARTMENT OF HIGHWAYS DEFENDANT

* * * * *

TRANSCRIPT OF THE EVIDENCE AND PROCEEDINGS

OF THE NON-JURY TRIAL HEARD ON

JANUARY 31, 1990

Juanita Stollings

Official Court Reporter

401 Courthouse

Lexington, Kentucky 40507

606 233-0817

RULING OF THE COURT:

THE COURT: Well, I happen to agree

with your law, but the Court of Appeals

does not. And since they are second and

last to speak, I have no alternative but to

follow their ruling. They have directed I

hold this hearing as to whether or not

access to these two business establishments

are reasonable.

I have heard evidence in that regard

additionally. Courts are entitled to take

judicial notice of those matters which are

of common knowledge in the community.

Having been a resident of this community

for a great number of years, being familiar

with Mr. Comer and his establishment since

at least 1962 in several regards, knowing

the type of business he receives, where

that business comes from, it will be the

Court's conclusion that Mr. Comer's access

has been diminished by at least sixty

percent.

What's the name of the hotel?

MR. KAWAJA: Used to be the Scott

Hotel.

THE COURT: The Scott Hotel has been

reduced by about forty percent. Again,

taking into play my judicial knowledge that

the Scott Hotel at one time was principally

for use by the people who worked for the

railroad, whereas, Mr. Comer draws not only

from the railroad people who used to work

on the railroad but the entire community

and substantial number of patrons from the

University of Kentucky students.

So with that, it's the Court's

determination that the access is not

reasonable by virtue of the building of the

underpass. Being a traveler of Broadway,

I'm very happy to see the underpass being

built because I don't have to worry about

being killed now by trains.

I might add that one of the reasons

I'm talking about these diminishing mattes

is I'm aware that Mr. Comer's business is

not the same business it was fifteen years

ago.

Hopefully, you fellows now can reach a

conclusion. I have a rule in the Second

Division that nothing bigger than what can

be placed in a file folder cannot be -- but

you might, if you want to appeal this

matter at some future date, substitute that

for the record, but then if you go up on

appeal to the Court of Appeals or Supreme

Court, then you can take those up so they

can see them better. They're not as

familiar with this location as I am.

MR. KAWAJA: Your Honor, may I ask if

the Court would entertain making this an

appealable matter at this point and then

coming back for damages?

THE COURT: The Court's findings of

fact and conclusions are as dicatted into

the record. I say look at 'me latter and

shudder at my grammar and English that I've

used; but, nonetheless, that's going to be

my findings of fact and conclusions. Let

this be a final and appealable order.

Maybe one of these days we'll get this case

over with while Mr. Comer and I are still

living.

THEREUPON, at 2:28 p.m., the hearing

was concluded.

FAYETTE CIRCUIT

CIVIL BRANCH

SECOND DIVISION

COMMONWEALTH OF KENTUCKY

TRANSPORTATION CABINET

DEPARTMENT OF HIGHWAYS APPELLANT

vs. NO. 87-CI-4114

RAYMOND COMER

AND MARION CORN APPELLEES

TRANSCRIPT OF THE EVIDENCE AND PROCEEDINGS

OF THE TRIAL HELD ON

DECEMBER 17, 1990

Juanita Stollings

Official Court Reporter

401 Courthouse

Lexington, Kentucky 40507

606 233-0817

THE COURT: Overruled. As I've said

throughout this litigation, I am in

disagreement with the ruling of the

appellate court, but twice I have attempted

to resolve the matter and twice the

appellate court sent it back. I was

harking back to the days of Frisch's

Restaurant on Harrodsburg Road when they

four-laned the highway. There were two

problems in that case. One, as to whether

or not the lessee was entitled to show the

value of their lease separate and apart

from the total value of the property, and,

second, whether or not lack of access or

limited access _ to a highway was

compensable. And the appellate court, at

that time the highest court, in both cases

Said lack of access or limited access is

not compensable. Two, the property has to

be valued as a whole. And I'm not aware of

any case which has changed that law, but

somewhere along the line maybe’ the

appellate court is desirous of changing

what our law might be and maybe they want a

new start at it, so I'm attempting to give

them a new start. I've never hesitated to

let 'me know what I think about a matter,

but that's their decision they have to

make, not mine.

RENDERED: DECEMBER 20, 1991; 10:00 A.M.

TO BE PUBLISHED

COMMONWEALTH OF KENTUCKY

COURT OF APPEALS

91-CA-137-MR

COMMONWEALTH OF KENTUCKY

TRANSPORTATION CABINET,

DEPARTMENT OF HIGHWAYS APPELLANT

V. APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE N. MITCHELL MEADE, JUDGE

CIVIL ACTION NO. 87-CI-4114

RAYMOND COMER and

MARION CORN APPELLEES

REVERSING

es

BEFORE: HOWERTON, SCHRODER and WILHOIT,

Judges.

HOWERTON, JUDGE. The Commonwealth of

Kentucky, Transportation Cabinet,

Department of Highways appeals from a

determination of the Fayette Circuit Court

that Raymond Comer and Marion Corn were

denied reasonable access to their

properties when the state constructed a

railroad underpass on South Broadway in

Lexington. After the trial court concluded

there was a public taking of the land, a

jury awarded $240,000 to Comer and $111,000

to Corn.

In a previous proceeding, the trial

court concluded that there was no

compensable taking. As that decision was

apparently based on the judge's personal

knowledge of the situation, this Court

reversed the judgment and remanded for a

trial and findings. Judge Meade committed

a procedural error in the first proceeding,

but he apparently had a correct

understanding of the substantive issue. On

remand, he heard the evidence and made his

findings, but on the ultimate question of a

compensable denial of reasonable access, he

erred as a matter of law. We reverse.

-2?-

Comer and Corn each owned property at

the intersection of South Broadway and

Scott Street in Lexington prior to

construction of the railroad underpass in

1987. Before construction, the public had

access directly from South Broadway to

Scott Street in front of the properties, on

which each was operating a business. After

construction of the underpass, the

properties did not have direct vehicular

access to South Broadway but continued to

have direct access only to Scott Street.

It is now necessary to drive approximately

nine-tenths of a mile over Scott Street and

other adjacent streets to get to these

properties from Broadway. There was no

Physical taking of any part of either the

Comer or Corn property.

Comer and Corn filed the first appeal

to this Court after the trial court

dismissed their original complaint, which

-3-

alleged deprivation of aright’ of

reasonable access to the highway systen,

resulting in an unauthorized taking without

just compensation. This Court vacated and

remanded the case, holding that the trial

court must hear some evidence in order to

determine the issue. This Court noted

that, although it appeared from the order

of the trial court that Judge Meade

believed the property owners were not

denied reasonable access, the court had

failed to make any specific finding or cite

any legal authority regarding the issue of

reasonable access. This Court's earlier

opinion did not mandate a judgment for

Comer and Corn. After this Court's

decision, the Commonwealth's motion for

discretionary review was denied.

On remand, the trial court held an

evidentiary hearing. Comer and Corn

introduced evidence of circuity of travel

-4-

and diversion of traffic, as well as

evidence from which loss of business could

be inferred. After all the evidence was

presented, the trial court ruled that the

property owners had lost reasonable access.

A jury trial to determine damages was held

over the Commonwealth's objection. The

jury awarded Comer $240,000 and Corn was

awarded $111,000. The Commonwealth now

appeals to this Court to review the trial

court's decision regarding reasonable

access, along with the issues regarding the

evidence presented to the jury and its

verdict.

The Commonwealth argues that the

evidence presented at the hearing, when

considered in light of the legal standards

enunciated in the case law, was

insufficient to support the conclusion that

Comer and’ Corn had lost reasonable access

to their properties. We believe this

argument is sound.

Initially, it appears that the trial

judge misconstrued the directive from the

first appeal of this case. The deficiency

noted on that appeal was the absence of any

finding or conclusion of law based on

evidence that the remaining access to the

Comer and Corn properties was’ either

reasonable or unreasonable. This Court's

decision was required by the-~ rule

enunciated in Commonwealth, Department of

Highways v. Adkins, Ky., 396 S.W.2d 768

(1965). Ordinarily, whether the landowner

has been deprived of reasonable access is a

question of law which should be resolved by

the court, but in order for it to be

resolved at all, the facts must. be

disclosed.

No evidentiary hearing was held,

although a stipulation was filed. The

-6-

landowners were denied the right to

demonstrate by evidence, if they could,

that Scott Street does not meet modern

vehicular requirements, or that it was

impassable at certain times, or that it

provided insufficient driveway space for

commercial vehicles, or that it in some way

other than circuity was not reasonable

access. This Court expressed no opinion as

to what that ultimate determination should

be. It only required that the narrow issue

of reasonable access be addressed.

The evidence adduced at the hearing on

remand showed that Comer and Corn retained

access to their properties via Scott

Street; however, in order to get to their

properties from that portion of South

Broadway which adjoins their properties,

one must drive approximately nine-tenths of

amile. It is well-settled law in Kentucky

that reasonable restriction of access,

-7J-

rerouting of public highways, and circuity

of travel caused thereby are not legally

compensable. Commonwealth, Department of

Highways v. Diuguid, Ky., 469 S.W.2d 707

(1971) ; Commonwealth Department of Highways

v. Rosenblatt, Ky., 416 S.W.2d 754 (1967).

Clearly, governments must have the

authority to grant or deny parking on

streets, establish one-way traffic, allow

or deny curb-cuts and driveways, erect

dividers and safety barriers in streets,

and other such things to improve traffic

flow and safety.

DeRossette v. Jefferson County, 288

Ky. 407, 156 S.W.2d 165 (1941), the case

most similar to the cast at bar, involved a

property owner's claim that an underpass

built by the county destroyed his property

without payment of just compensation. The

owner alleged that the road alteration

interfered with traffic moving along a

-8-

heavily-travelled road on which he was

conducting a profitable business. The

underpass construction rerouted or diverted

traffic to the new highway. This led to

loss of business and depreciation in the

value of his real property.

The DeRossette court thoroughly

examined the case law and distinguished the

cases where a compensable loss was found.

Unreasonable obstruction in which all means

of ingress were destroyed was a common

theme found in several of the cases where

compensation was awarded. This was the

situation in Henderson Vv. City of

Lexington, 132 Ky. 390, 111 S.W. 318

(1908), and Illinois Central Railroad

Company v. Ward, 237 Ky. 478, 35 S.W.2d 863

(1931). The DeRossette court further noted

that other cases with compensable damage

existed when there was unreasonable

interference with ingress and egress or

-9-

there was a wrongful or illegal obstruction

of a public road. The court found Cranley

v. Boyd County, 266 Ky. 569, 99 S.W.2d 737

(1936), to be an example of unreasonable

interference when a county engineer closed

access to an old road used by the plaintiff

when the barriers effectively destroyed her

ingress and egress to that road. The

Cranley court limited its holding to the

facts and specifically stated that "[no]

compensation [will] be required where a

change ina road results merely in personal

inconvenience or injury, such as to trade

or business by diverting traffic, or

compels a more circuitous route of access."

266 Ky. at 573.

Although Comer and Corn rely = on

Henderson, supra, and Ward, supra, these

cases are easily distinguishable from the

present case. Here, we do not have a

complete destruction of ingress and egress

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to and from the subject properties.

Neither do we have an unreasonable

obstruction as presented in Cranley. Also,

we note that the remainder of the cases

cited by Comer and Corn involved a physical

taking from the abutting properties and are

thus distinguishable.

DeRossette, supra, and the cases

discussed therein, indicate that where

there is only a diversion of traffic or a

circuitous route of travel suffered by the

property owner, there is to be no

compensation. In the case before us, it is

evidence that the public has to take

another route from South Broadway to the

Comer and Corn wieneae ion. But, as the

Commonwealth points out in its brief, if

one is east of the properties, the Scott

Street route is still the same.

The DeRossette case was cited with

approval in Department of Highways vy.

-lli-

Jackson, Ky., 302 S.W.2d 373 (1957), which

was an action by an owner for depreciation

of land value when a county road between

his property and a nearby town was closed.

The court held that the closing of the

county road at one end did not deprive the

owner of reasonable access from his land to

the highway system and that he _ was

therefore not entitled to damages, even

though the closing required taking a

slightly longer route to the nearby town.

The court noted that past decisions had

made a distinction between county highways

and city streets as tothe rights of

abutting landowners to continued

maintenance. The rule had been that a

landowner along a county road had ~»no

property right in the continued maintenance

of that road, while a landowner along a

city street had a right, in the nature of a

private easement, to the continued

fa -12-

maintenance of platted or dedicated

streets. 302 S.W.2d at 374. In

specifically holding that this distinction

be abolished, the court declared "that the

rule governing city streets shall be the

same as that herein stated for county

roads." Id. at 376. Jackson overruled all

earlier cases: in conflict with this new

rule, including, to this extent, Cranley,

Supra, and Ward, supra.

In conclusion, we recognize the

difficulties frequently presented by

inverse condemnation cases, and the

resulting hardships often experienced by

the parties involved. However, it is not

for this Court to carve out any exceptions

to the general rule of law applicable to

cases such as this. The inherent nature of

the circumstances involved in such cases

has required that rules be created, which

may sometimes be viewed as arbitrary, but

-13-

which in fact provide workable, objective

standards. Neighborhoods, | traffic

patterns, safety requirements, and the like

change over time, and governments must not

always be required to compensate a property

owner for every inconvenience or loss of

business. The facts here present a case of

noncompensable damage. The trial judge

gathered the evidence as required but then

reached the wrong conclusion of law.

Because we find that there is no support in

the case law to hold that Comer and Corn

were denied reasonable access to their

properties as a result of the construction

of the underpass, we decline to address the

remaining issues raised by the

Commonwealth.

The judgment of the Fayette Circuit

Court is reversed.

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ALL CONCUR.

ATTORNEY FOR ATTORNEYS FOR APPELLEES:

APPELLANT:

Louis Kawaja Thomas C. Marks

Lexington, KY. Robert S. Miller

MILLER, GRIFFIN & MARKS

PSC

Lexington, KY.

—-15-

SUPREME COURT OF THE UNITED STATES

92-SC-20-D

(91-CA-137-MR)

RAYMOND COMER, ET AL. MOVANTS

Vv. FAYETTE CIRCUIT COURT.

87-CI-4114

COMMONWEALTH OF KENTUCKY RESPONDENT

TRANSPORTATION CABINET

DEPARTMENT OF HIGHWAYS

ORDER DENYING DISCRETIONARY REVIEW

The motion for review of the decision

of the Court of Appeals is denied.

Stephens, C. J., not sitting.

ENTERED April 1, 1992.

/s/ Charles M. Lester

Deputy Chief Justice