Summary
In State ex rel. State Highway Commission v. James, 356 Mo. 1161, 1168, 205 S.W.2d 534, 537, this court said: "The fee to land taken for right-of-way remains in the abutting owners, subject to the right of the State to construct and maintain a highway for the public use.
Summary of this case from State v. BrockfeldOpinion
No. 40438.
November 10, 1947.
1. CONSTITUTIONAL LAW: Eminent Domain: Highways: State Highway Commission: Limitation of Power. Sec. 29, Art. IV, 1945 Constitution does not grant the power of eminent domain, which is inherent in sovereignty, but limits such power, which may be exercised under existing statutory procedure.
2. CONSTITUTIONAL LAW: Eminent Domain: Highways: Statutory Powers of State Highway Commission: Limited Access Highway. The State Highway Commission has the power of eminent domain by statute and the Constitution recognizes that fact. The Commission is given authority by the Constitution to limit access to a highway at points not made inaccessible by the nature of the road's construction. And existing statutes place limitations and conditions upon such authority and provide adequate means for its exercise.
3. EMINENT DOMAIN: Highways: State Highway Commission: Power to Condemn Easements. The power of the State Highway Commission to condemn land includes the right to condemn appurtenant easements in the land. And an easement of access is an interest in land.
4. CONSTITUTIONAL LAW: Eminent Domain: Highways: State Highway Commission: Limited Access Highway: Power of Condemnation. Under Sec. 29, Art. IV, 1945 Constitution the State Highway Commission has the authority to limit the easement of access through the power of eminent domain, subject to existing statutory and constitutional conditions and such additional limitations and conditions as may be imposed by the legislature.
5. CONSTITUTIONAL LAW: Eminent Domain: Highways: State Highway Commission: Limited Access Highway: Service Roads Authorized. The State Highway Commission in providing a limited access highway may properly condemn a service road in connection therewith.
6. MANDAMUS: Eminent Domain: Highways: Jurisdiction of Circuit Court. The circuit court has jurisdiction to determine and decide all issues tendered by the condemnation petition.
ALTERNATIVE WRIT MADE PERMANENT.
Lue C. Lozier and Wilkie Cunnyngham for relator.
(1) Supreme Court has exclusive superintending control over respondent who refuses, solely because of his interpretation of the Constitution, to take jurisdiction of one of the issues tendered (ascertainment of just compensation for limitation of access rights at certain points). Constitution of Missouri (1941), Art. V, Secs. 4, 3; State ex rel. Neu v. Waechter, 332 Mo. 574, 58 S.W.2d 971. (2) Respondent's duty to take jurisdiction of condemnations for state highways is clear. R.S. 1939, secs. 8759, 1504, 1506. (3) Mandamus lies where, on a preliminary objection on a point of law, the inferior court refuses to take jurisdiction of some or all issues. State ex rel. Snow Steam Pump Works v. Homer, 249 Mo. 58, 155 S.W. 405; State ex rel. Wabash Ry. Co. v. Shain, 341 Mo. 19, 106 S.W.2d 898; State ex rel. Mississippi River Bonne Terre Ry. Co. v. Dearing, 173 Mo. 492, 73 S.W. 485; 38 C.J. pp. 611, 612, sec. 88. (4) Appeal would not be an adequate remedy. A useless, wasteful jury trial would be necessary before it would lie; then after the appeal a second jury trial would be required — this time either on the original petition (with stricken paragraphs replaced) or on amended location and plans. Missouri Civil Code 1945); Sec. 126, Laws 1943, p. 390; State ex rel. Mo. Pac. Ry. Co. v. Edwards, 104 Mo. 125, 16 S.W. 117; State ex rel. Cape Girardeau v. Engleman, 106 Mo. 628, 17 S.W. 759; St. Joseph Term. Ry. Co. v. Hannibal St. Joseph R. Co., 94 Mo. 535, 6 S.W. 691; State ex rel. General Motors Acceptance Corp. v. Brown, 330 Mo. 220, 48 S.W.2d 857. (5) Since long before the adoption of present Art. IV, Sec. 29, Mo. Const. 1945, the State Highway Commission has had the authority (and duty) to do all things it may deem necessary to locate (within certain limits), design, construct, maintain, and regulate the use of such state highways as it may deem for the best interests and advantages of the people of the State, and has been vested with all powers (including the power to condemn whatever property or rights) necessary or proper to enable the Commission to carry out fully and effectively all of its said authority and duties. Centennial Road Law (Laws (1st Ex. Sess., 1921), pp. 131-167); R.S. 1939, secs. 8763, 8742, 8758, 8759; Castilo v. State Highway Commission, 312 Mo. 244, 279 S.W. 673; Constitutional Amendment (1928), Art. IV. Sec. 44a; State ex rel. State Highway Comm. v. Thompson, 323 Mo. 742, 19 S.W.2d 642. (6) The power to condemn "lands" when necessary "authorizes the taking of all property or rights of the condemnee incidental, or attached to land" — the condemnor may take all property rights necessary, but is not required to take any more. There is no reason why easement of access appurtenent to land should stand in a class by itself and be the sole right in land not subject to condemnation. Petition of Burnquist, 220 Minn. 48, 19 N.W.2d 394; Houston North Shore Ry. Co. v. Tyrrell, 128 Tex. 248, 98 S.W.2d 786, 108 A.L.R. 1508; 20 C.J. 589, sec. 76; 29 C.J.S. 858, sec. 69; R.S. 1939, secs. 655, 5153; St. Louis, K. N. Ry. Co. v. Clark, 121 Mo. 169, 25 S.W. 192; Chaplin v. Kansas City, 259 Mo. 479, 168 S.W. 763. (7) Adoption of Constitution (1945), Art. IV, Sec. 29, did not withdraw or repeal the Commission's authority to construct state highways and to limit access thereto (which are given by the Centennial Road Law), but authority for both is set out in the 1945 Constitution in positive terms. 16 C.J.S., pp. 98, 100, sec. 48; Missouri Constitution (1945), Art. IV, Secs. 29, 30; McGrew Coal Co. v. Mellon, 315 Mo. 798, 287 S.W. 450. (8) If, by the simple expedient of having the statutes free of any limitation on the Commission's authority to limit access, (1) the Legislature can nullify the constitutional mandate regarding that authority, then much more clearly the (2) Legislature can at any time abolish all authority for constructing any more state highways, since the provision ("may") authorizing legislative limitations upon the limiting-access authority is more clearly "permissive" and less "mandatory" than is the provision authorizing legislative limitations upon the construction authority. State ex rel. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941; Ex parte Marsh v. Bartlett, 343 Mo. 526, 121 S.W.2d 737.
Ira B. McLaughlin and R.R. Brewster, Jr., for respondent.
(1) The right of access of landowners abutting a highway is a property right which cannot be taken for public use without just compensation. Any power to condemn such right of access can only be delegated by clear constitutional or statutory provisions. Ver Steeg v. Wabash R. Co., 250 Mo. 61, 156 S.W. 689; Press v. Penny, 242 Mo. 98, 145 S.W. 458; State ex rel. State Highway Comm. v. Gordon, 327 Mo. 160, 36 S.W.2d 105; Houck v. Little River Drainage Dist., 343 Mo. 28, 119 S.W.2d 826; State ex rel. Cranfill v. Smith, 330 Mo. 252, 48 S.W.2d 891. (2) The power to condemn the right of access has not been granted to the State Highway Commission in the Constitution, and even if it should be considered that it was so granted, the power to burden the abutting property owner's land with traffic from other abutting landowners has not been so granted. Mo. Constitution 1945, Art. IV, Secs. 29, 41. (3) The power to condemn the right of access has not been delegated to the State Highway Commission by the Legislature. R.S. 1939, secs. 8759, 8758, 8763. (4) Article IV, Section 29, Missouri Constitution, 1945, if construed as granting authority to condemn the right of access of abutting landowners, is not selfenforcing. Mo. Constitution 1945, Art. IV, Sec. 44; Missouri Constitution 1945, Art. V, Sec. 29(g); State ex rel. City of Fulton v. Smith, 194 S.W.2d 302; Ivie v. Bailey, 319 Mo. 474, 5 S.W.2d 50; In re Moore's Estate, 189 S.W.2d 229.
Mandamus. On petition of the State Highway Commission, relator, we issued [535] our alternative writ requiring the respondent circuit judge to accept and exercise jurisdiction of all issues tendered in a condemnation suit filed by relator in his court, or to show cause why he should not do so. Respondent made return and the cause is brought to issue by relator's motion for judgment on the pleadings.
The petition filed by relator in the circuit court is in furtherance of a plan duly adopted by the Commission for the improvement of about six miles of Highway 40 in Jackson County, by the construction of a new road, with access thereto limited to certain designated points, and by the construction of "service" roads, as to which no limitation of access is provided. The service roads are to be on each side of the limited access road and are to connect therewith at certain points. The plan contemplates the use of a portion of present Highway 40 as a part of one of the service roads. The petition seeks to condemn described private property for the purposes mentioned and, after the description of each tract proposed to be taken for the limited access road, contains a paragraph as follows:
"Except as otherwise hereinafter specifically provided, no right or easement whatsoever of use of, or direct access to, from or across the right-of-way above described or any highway now or hereafter constructed thereon, shall attach or belong to the abutting lands or to any person merely because of ownership of abutting lands."
The owners of two of the tracts sought to be condemned filed motions to strike the above quoted paragraphs from the condemnation petition. The court sustained these motions, holding that the petition otherwise stated a good cause of action, but that the Commission has no power to condemn or extinguish the easement or right of abutting owners of access to the highway and that the court lacks jurisdiction to ascertain just compensation for the extinguishment of such easement or right.
In this court respondent contends: (1) that the power to condemn the right of access has not been granted to the Commission either by constitution or statute; (2) that Article IV, Section 29, of the Missouri Constitution of 1945, if construed as granting authority to condemn such right of access, is not self enforcing.
That section of the constitution, referring to the Commission, reads:
"It shall have authority over and power to locate, relocate, design and maintain all state highways; and authority to construct and reconstruct state highways, subject to limitations and conditions imposed by law as to the manner and means of exercising such authority; and authority to limit access to, from and across state highways where the public interest and safety may require, subject to such limitations and conditions as may be imposed by law."
The section does not purport to grant the power of eminent domain, nor does any constitutional provision grant that power to the State or to any state agency, although Section 41 of Article IV authorizes the Conservation Commission to exercise the power "as provided by law for the highway commission." The constitution does not grant the power of eminent domain. The power is inherent in sovereignty, [ 327 Mo. 160, 36 S.W.2d 105] to be exercised by such agencies, for such public purposes and in such manner as now or hereafter provided by law. The constitution limits the power and the manner of its exercise in certain respects. [Secs. 26, 28, art. I; sec. 4 of art. XI.] It also defines certain purposes as being public purposes for which private property may be condemned. [Game Conservation, secs. 40, 41, art. IV; Corporate Franchises, sec. 4, art. XI; Drains, Private Ways, etc., sec. 28, art. I; Excess Property, sec. 27, art. I; Memorials, etc., sec. 48, art. III; Slum Clearance, sec. 21, art. VI.] Constitutional provisions which limit or restrict the power of eminent domain are, of course, self enforcing. Provisions defining the purposes for which condemnation may be had are not self enforcing in the sense that they may be enforced by courts except to the extent and in the manner provided by statute. But that does not necessarily require the enactment [536] of a new statute or the re-enactment of an old statute after the effective date of the constitutional provision. All that is necessary is that there be in force, at the time the particular interest in property is sought to be condemned, a constitutional provision or statute broad enough to authorize the condemnation of such interest and a statute to provide a reasonable method to determine just compensation therefor.
Section 29 of Article IV does not expressly mention the subject of eminent domain. It was unnecessary to do so. The Highway Commission has the power of eminent domain by statute and the constitution recognizes that fact in Section 41 of Article IV, mentioned above. Section 29 does authorize the Highway Commission to limit access to state highways where the public interest and safety may require, subject to such limitations and conditions as may be imposed by law. Access to highways, even by abutting owners, is often limited by the necessary construction of cuts, fills, viaducts, etc., but Section 29 goes farther than that. It vests the Commission with authority, when it deems the public interest and safety to require, to limit access at points not made inaccessible by the nature of the road's construction.
Is that a present grant of authority, or one which does not become effective until the future enactment of law? The section says the authority is subject to such limitations and conditions as may be imposed by law. It is argued by relator, that the broad statutory powers of the Commission already vest it with authority to limit access, and that the constitutional provision is but the recognition of an existing authority, with a reservation of power in the general assembly to limit or further limit the authority. But, whether the provision is a grant of new authority to the Commission or the recognition of an existing authority, we think existing statutes place "limitations and conditions" upon the authority and provide adequate methods for its exercise. [All references to statutes will be to sections of Missouri Revised Statutes 1939 and Mo. R.S.A.]
Section 8759 vests the Commission with power to condemn lands in the name of the State for right-of-way, etc., and "for any other purpose necessary for the proper and economical construction of the state highway system for which the commission may have authority granted by law." Section 8763 gives the Commission large control over the location and construction of state roads and power to make rules and regulations for the proper management and conduct of such work. Section 30 of Article IV of our Constitution says that certain funds shall stand appropriated, "without legislative action," to the Commission for a great many specified purposes and "(5) For such other purposes and contingencies relating and appertaining to the construction and maintenance of such highways and bridges as the commission may deem necessary and proper." We have held that these provisions give the Commission large discretionary powers. [Castilo v. Commission, 312 Mo. 244, 279 S.W. 673; State ex rel. Commission v. Thompson, 323 Mo. 742, 19 S.W.2d 642.] Other statutes provide the method for condemning real property. Section 655 provides rules for construing statutes and says, ". . . unless such construction be plainly repugnant to the intent of the legislature, or of the context of the same statute: . . . ninth, the terms `real property' or `premises,' or `real estate' or `lands,' shall be deemed to be coextensive with lands, tenements and hereditaments; . . ."
"An easement appurtenant to land is property subject to the power of eminent domain. . . . A statute giving the right to condemn `land' or `real estate' will be held to include easements, such as a right of way, especially where the statute declares that those words shall include lands, hereditaments, and all rights thereto and interests therein." [29 C.J.S., 858, sec. 69.]
The interesting case of Chaplin v. Kansas City, 259 Mo. 479, 168 S.W. 763, was decided by Division One of this Court more than thirty years before the adoption of our new constitution in 1945. The facts in that case differ from those in the instant [537] case, but the reasoning is apposite as to the extent of the power of eminent domain. The plaintiff, Mrs. Chaplin, sought to enjoin the city from carrying out a plan to convert an alley running along the southerly side of plaintiff's real estate, into a parkway. Before plaintiff acquired the land the city had by condemnation taken a few feet off the east end of the tract to widen Baltimore Avenue and in the same suit described the alley and procured a decree that it be appropriated for park purposes. Plaintiff's grantor was a party to the condemnation suit. From an adverse judgment in the injunction suit, plaintiff appealed and, in substance, made the following contentions: (1) that by virtue of her ownership of the abutting land, she owned the fee in part of the alley and an easement [right of access] in the whole; (2) that having already been devoted to public use as an alley, the city had no power to appropriate it to public use as a parkway; (3) that, even if the city had such power, the record shows no attempt to condemn the particular interest [right of access] in the alley. We ruled all these contentions against the plaintiff-appellant, holding [l.c. 489, 490] that the interest in the fee and the easement of access remaining after dedication of the property as an alley constituted "private property" subject to condemnation for a different public use, and that the abutting owner could have demanded damages for the taking of such interests in the condemnation suit. This view of the law is approved in the Restatement, "Property, Servitudes," Sections 450, 508, inclusive. We quote from comment c under Section 507: "If the condemning authority has already acquired, subject to the easement, the servient tenement, the easement may be separately condemned and extinguished."
A Minnesota statute authorizes the Commissioner of Highways to acquire by purchase, gift or otherwise, all "necessary right of way" for laying out and constructing a trunk highway system, and so much as shall be necessary for the proper and safe maintenance thereof. After the right-of-way had already been acquired, the Commissioner instituted condemnation proceedings against abutting land owners to extinguish their rights of access in order to construct a "free way" with access limited to intersecting roads. The Minnesota Supreme Court in a long opinion, citing many authorities, said that the Commissioner has the obligation of maintaining the highways free from traffic hazards wherever possible and upheld his right to condemn and extinguish easements of access in the name of the State. [Petition of Burnquist, 220 Minn. 48, 19 N.W.2d 394.]
The foregoing shows that this court and courts of other states have held that the statutory power to condemn "land" includes the power to condemn appurtenant easements in the land. That is certainly true of a statute which authorizes the appropriation of the fee. It may be true that the Commission has power to condemn the fee in land for some purposes, such as the erection of buildings, [See Section 8760] a point which we do not here decide. But our statutes do not authorize the condemnation of the fee for right-of-way. The fee to land taken for right-of-way remains in the abutting owners, subject to the right of the State to construct and maintain a highway for the public use. In addition to an interest in the fee, abutting owners have an easement of access from their property to the highway. This constitutes a property right, an interest in land.
Section 29 of Article IV of the Constitution grants the Commission authority to limit the easement of access. How is it to be limited? Lacking consent of the owner there is only one way to limit or extinguish this interest in land and that is by the exercise of the power of eminent domain. Section 8759 of the statutes grants the power of eminent domain to the Commission not only to procure "right of way" but for any other purpose necessary for the proper and economical construction of the state highway system. Section 29 of Article IV provides that limitation of access is a proper consideration in the construction of state highways where the public interest and safety may require and, therefore, announces a purpose for which condemnation may be had under the statute. The power [538] to limit access is "subject to (such) limitations and conditions (as may be) imposed by law." Existing law, both statutory and constitutional, already limit and condition the taking of any interest in land by providing that just compensation must be ascertained and paid in the manner provided by statute. The general assembly is authorized to impose additional limitations and conditions.
Respondent says: "Even if the power to condemn the right of access has been granted to the Highway Commission . . . it is clear that it gave no right to burden the property of an abutting land owner by granting to others a right-of-way across their private land." Then respondent complains that the service roads are "not solely for the benefit of the abutting property owner whose property is taken, but for the benefit and use of others."
There is no substance in such complaint. Of course, the service roads are for the benefit of the general public. Otherwise private property could not be condemned to construct them. They will provide access not only to the "free way," but to all points on the service roads and all connecting roads.
We hold that the circuit court has jurisdiction to determine and decide all issues tendered by the condemnation petition. Accordingly, our alternative writ of mandamus is hereby made permanent. All concur.