Carazalla v. State

¶1The following opinion was filed June 28, 1955:

¶2(on motion for rehearing). The briefs submitted by the attorney general and by American Automobile Association, amici curiae, in support of the defendants’ motion for rehearing stress the argument that any loss of commercial value to the plaintiffs’ remaining lands is due to the exercise of the state’s police power and not to a taking by eminent domain. This is because the designation of relocated U. S. Highway 51 as a “controlled access” highway is grounded upon an exercise of the police power.

¶3The general rule is that damage resulting to property through the exercise of the police power is not compensable.1 We consider the following statement • appearing in 11 Mc-Quillin, Mun. Corp. (3d ed.), p. 319, sec. 32.27, to be particularly pertinent to the facts of the instant case:

“The question of what constitutes a taking is often interwoven with the question of whether a particular act is an exercise of the police power or of the power of eminent domain. If the act is a proper exercise of the police power, the constitutional provision that private property shall not be taken for public use, unless compensation is made, is not applicable.”

¶4Limited-access highways and their effect upon the rights of abutting property owners to compensation are the subject of three excellent law-review articles 2 in which are cited *608the court decisions bearing on the question. The authors of all three articles agree that the limiting of access to a public highway through governmental action results from the exercise of the police power, and that in the case of a newly laid out or relocated highway, where no prior right of access existed on the part of abutting landowners, such abutting landowners are not entitled to compensation. On the other hand, the authorities cited in these articles hold that where an existing highway is converted into a limited-access highway with a complete blocking of all access from the land of the abutting owner, there results the taking of the pre-existing easement of access for which compensation must be made through eminent domain. However, if the abutting landowner’s access to the highway is merely made more circuitous, no compensation should be paid according to the authors of these articles, and the majority opinion in People v. Ricciardi (1943), 23 Cal. (2d) 390, 144 Pac. (2d) 799, to the contrary is severely criticized. In the instant case the plaintiff landowners still have their right of access to old U. S. Highway 51 which has not been closed off.

¶5We consider the case of State v. Burk (1954), 200 Or. 211, 265 Pac. (2d) 783, to be particularly in point on the issue now before us, as that case like the instant one, involved a partial taking of land for the relocation of a highway, and the relocated highway was made a nonaccess highway. The Oregon court held that no damages were recoverable in the eminent-domain proceedings for any deprivation of easement of access because the landowners never possessed such an easement as to the newly located highway. It was pointed out in the opinion that the making of the relocated highway a nonaccess highway was the result of the exercise by the state of its police power.

¶6We are satisfied that both the learned trial court, and this court in its original opinion, were right in holding that in a case of a partial taking of land by eminent domain any damages to the remaining land, which results from the use to *608which the parcel taken is to be devoted, is a proper item to be included in determining the value of the owner’s remaining land after the taking. This is so even though such damage is of a type suffered by the public as a whole and is not peculiar to his remaining property.3

¶7However, in our original opinion we failed to perceive that any damages to the remaining lands due to the exercise by the state of its police power in making the relocated highway a controlled-access highway are not recoverable. The reason for such lack of perception was that the institution of the condemnation proceedings and the designation of the relocated highway as a controlled-access highway were so interwoven that we considered the two to be an inseparable whole when actually they constituted two separate and distinct acts.

¶8If relocated U. S. Highway 51 had not been designated as a controlled-access highway, but instead that part thereof located upon the parcel taken from the plaintiffs had been constructed on such a high embankment as to make it impracticable for passing traffic to reach plaintiffs’ remaining abutting lands from such highway, the rule announced in our former opinion would be applicable. Such rule, however, is not applicable to a situation where moving traffic would have suitable ingress to, and egress from, plaintiffs’ abutting lands from the relocated highway except for the fact that the state’s police power has been exercised to prohibit the same.

¶9It is, therefore, our conclusion that it was prejudicial error for the trial court to refuse to give to the jury defendants’ requested instruction, that all evidence of loss of value for commercial purposes due to making the relocated highway a controlled-access highway, be disregarded. For this reason, the judgment appealed from must be reversed and the cause remanded for a new trial.

¶10By the Court. — The prior mandate is vacated, and the judgment is reversed, and cause remanded with directions for a new trial not inconsistent with this opinion.