Summary
In Merritt, the relators owned a tract of land with a service station, store, and restaurant along U.S. Highway 50 in Athens County. The state rerouted Highway 50 away from the relators' property, onto a newly built section of road.
Summary of this case from State ex rel. Cuyahoga Lakefront Land, L.L.C. v. City of ClevelandOpinion
No. 34185
Decided April 13, 1955.
Real property — Owner of property abutting highway — Rights in highway — Right to easement for ingress and egress — Not impaired by newly created circuity of travel — Relocation of highway — Diversion of traffic — Not impairment of property right of abutting owner — Damnum absque injuria.
1. An owner of property abutting on a public highway possesses, as a matter of law, not only the right to the use of the highway in common with other members of the public, but also a private right or easement for the purpose of ingress and egress to and from his property, which latter right may not be taken away or destroyed or substantially impaired without compensation therefor.
2. Mere circuity of travel, necessarily and newly created, to and from real property does not of itself result in legal impairment of the right of ingress and egress to and from such property, and, where a portion of a highway is relocated and property abutting on the old highway does not abut on the relocated portion and the owner has the same means of ingress and egress to and from such property, there is no legal impairment of such right.
3. The owner of land abutting on a highway has no property right in the continuation or maintenance of the flow of traffic past his property, and the diversion of traffic as the result of an improvement in the highway or the construction of an alternate highway is not an impairment of a property right of such owner for which damages may be awarded.
IN MANDAMUS.
This is an action in mandamus originating in this court, in which the relators seek to require the respondent, Director of Highways, to fix the value of relators' property allegedly taken for highway purposes and damages to the remainder of such property and to proceed to appropriate the same because of highway relocation.
The cause was submitted to this court for determination on the petition of the relators, the answer of the respondent and stipulation of facts. The facts admitted by the pleadings or stipulation or both are substantially as follows:
In 1954, pursuant to the provisions of Section 5511.01, Revised Code, the respondent instituted proceedings whereby a change was made in the location of a part of U.S. Highway No. 50 in Rome Township, Athens County, southeast of Athens, Ohio, for a distance of approximately five miles, thus avoiding the use of a long sweeping curve in the old highway.
The abandoned portion of U.S. Highway No. 50, hereinafter called the old highway, will not hereafter be maintained and serviced by the Department of Highways of Ohio as a state highway, but will become a part of the Athens County highway system by virtue of the provisions of Section 5511.01, Revised Code, and will be maintained as such, and abutting-property owners will have the same access thereto.
Relators are the owners of a tract of land which abuts on the old highway along the east side of the entire frontage of such tract, a distance of about 335 feet, and relators enjoy an access easement to and from the old highway over the entire frontage of their premises. The record shows that the premises in question had been improved by the erection of a gas and oil filling station, a store and a restaurant at the grade of and abutting on the old highway; that said filling station, store and restaurant business furnished relators their principal means of livelihood before the relocation of the highway; that most of the business and patronage enjoyed by relators came from persons traveling on the old highway, many of whom were a part of the general traveling public; and that access to relators' premises from the new portion of U.S. Highway No. 50, hereinafter called the new highway, will be available to relators and to the traveling public only by means of two lanes leading from such highway, over and across the lands of persons other than relators, to the old highway, which lanes have been constructed by the state highway department as a part of such highway relocation project.
Only those persons who choose to leave the new highway and those who seek entrance to the premises of relators will use such access lanes or any part of the old highway. Such lanes and the old highway will not be used generally by the traveling public, and the main flow of traffic on the new highway will bypass relators' premises.
Relators claim that their property has, in effect, been taken for a public purpose by the respondent, and that relators' access easement, business and value of their premises will be destroyed and rendered worthless. Relators allege in their petition that by reason of the provisions of Section 5519.01, Revised Code, it is the duty of the respondent, if he is unable to purchase their property thus taken and appropriated for public purposes, to appropriate such property and to fix the value thereof, together with damages to any residue.
The petition prays that the respondent be required to take these steps and thus award to the relators the value of their property and damages suffered by reason of the highway relocation.
Messrs. Rowland, Bridgewater Gray, for relators.
Mr. C. William O'Neill, attorney general, and Mr. Hugh E. Kirkwood, Jr., for respondent.
The question before us may be stated thus: Where a property abuts on an existing state highway and such highway is relocated so that the property does not abut on the new highway but continues to abut on the original highway as a county highway, and the owner of such property continues to have the same access thereto, in addition to access to the relocated portion of the highway at both ends thereof, by two lanes from one highway to the other, is there a taking of any property rights of such property owner?
It is the claim of the respondent that no physical property of relators was taken for the relocation project; that the old highway in front of relators' property will not be physically changed; that, although the property will no longer be on a state highway, it will be on a county highway to which relators' access and use will be the same as before; that the traveling public will have the same highway access to relators' property as before; and that no property right of the relators has been denied, taken or appropriated, incident to the relocation project.
On the other hand, relators claim that their access easement was destroyed by the relocation, and that the old highway upon which their property continues to abut will not be a publicly traveled highway, as a result of which they have suffered a legal wrong for which they may assert a claim for compensation and damages. They cite, as supporting their contention, the following cases: State, ex rel. McKay, Exr., v. Kauer, Dir., 156 Ohio St. 347, 102 N.E.2d 703 (a narrowing of a street and a change of an abutting street grade); Crawford v. Village of Delaware, 7 Ohio St. 460, 469 (change of an unestablished abutting street grade to an unreasonable grade); Jackson v. Jackson, 16 Ohio St. 163 (alteration of road running through plaintiff's land and intersecting other roads, by vacating the old road to or near plaintiff's line, but leaving it open through his land); Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264, 282, 62 N.E. 341, 87 Am. St. Rep., 600 (vacation of a part of street other than portion on which plaintiff's property abutted); Hall v. Pittsburg, Cincinnati, Chicago St. Louis Ry. Co., 85 Ohio St. 148, 97 N.E. 381 (construction of railroad tracks across a street that afforded the only reasonable means of access to property abutting thereon).
This court has held that "an abutting lot owner has such an interest in the portion of the street on which he abuts, that the closing of it up, or the impairment of its use as a means of access, or the addition of a new burden, is a taking of private property for a public use, and cannot be done without compensation." Kinnear Mfg. Co. v. Beatty, supra, 282, and cases cited.
However, the facts in the instant case do not show the impairment of the use of the highway on which relators' property abuts, but only the opening of a new highway which diverts public travel from the old highway. The cases above noted and cited by relators are not applicable to such a situation.
In general, the right of access includes the right to use a highway as an outlet from abutting property to a connecting highway by any mode of travel or conveyance appropriate to a highway and the right to use the highway in front of the property in connection with its use and enjoyment in such manner as is customary and reasonable. 25 American Jurisprudence, 448, Section 154; 1 Lewis on Eminent Domain (3 Ed.), 190; Krebs v. State Roads Commission, 160 Md. 584, 154 A. 131; Brehm v. State Roads Commission, 176 Md. 411, 5 A.2d 820, 6 A.2d 378; State v. Hoblitt, 87 Mont. 403, 288 P. 181; Nelson v. State Highway Board, 110 Vt. 44, 1 A.2d 689, 118 A.L.R., 915, and annotation; Heil v. Allegheny County, 330 Pa. 449, 199 A. 341.
Mere circuity of travel, necessarily and newly created, to and from real property does not of itself result in legal impairment of the right of ingress and egress to and from such property, where any resulting interference is but an inconvenience shared in common with the general public and is necessary in the public interest to make travel safer and more efficient.
In the case of New York, Chicago St. Louis Rd. Co. v. Bucsi, 128 Ohio St. 134, 190 N.E. 562, 93 A.L.R., 632, the city of Cleveland in 1929 vacated and closed a part of Nevada Avenue west of East 89th Street at a point 350 feet east of the eastern line of the Bucsi property abutting on Nevada Avenue, thereby rendering the street a cul-de-sac with entrance thereto only from East 86th Street. By reason of these acts, the means of access of the Bucsis from their property to East 89th Street to the east of their property was entirely destroyed. The Bucsis claimed there was a taking of the property without due process of law and brought suit against the city and a railroad company, resulting in a judgment for the Bucsis, which judgment was affirmed by the Court of Appeals. On appeal this court reversed the judgment and rendered final judgment for the defendants, holding that, "where a duly dedicated and accepted east-and-west street of a city is vacated by the city some distance from its eastern terminus and completely closed to travel, the owner of property abutting upon such street, but not upon the vacated portion thereof, has no right of action for damages because of such vacation, so long as his access to the city street system to the west is not impaired"; and that, "under such circumstances, the abutting property owner's damage, if any, differs in degree but not in kind from that of the general public, and his legal status falls within the category of damnum absque injuria." See, also, 49 A.L.R., 333.
Relators seem to claim that because of the fact that their property does not abut on the new highway their access to that highway has been destroyed. The fact is, of course, that their property does not and never did abut on the new section of the highway and consequently they do not have an easement of access to that section. Their right of access is to the old highway which has not been obstructed or destroyed and is still open to travel and connected with the same main highway. The only change is that it is now a county instead of a state highway.
One of the principal claims of the relators as to damage to their property because of the relocation of the highway is that the relocation has diverted travel from the highway abutting their property to the new highway and has thus injuriously affected their business. This raises the question whether loss of trade and business to an owner of property abutting on an established highway, because of a diversion of traffic over such highway to a newly established, alternate highway, is a compensable injury chargeable to the highway authority.
It is now an established doctrine in most jurisdictions that such an owner has no right to the continuation or maintenance of the flow of traffic past his property. The diminution in the value of land occasioned by a public improvement that diverts the main flow of traffic from in front of one's premises is noncompensable. Heil v. Allegheny County, supra, paragraph five of the syllabus; Nelson v. State Highway Board, supra, 53. The change in traffic flow in such a case is the result of the exercise of the police power or the incidental result of a lawful act, and is not the taking or damaging of a property right. Jackson v. Jackson, supra.
In the Jackson case, this court held:
"A claimant for damages in the alteration of a road, is not entitled to recover, where such alteration merely renders the road less convenient for travel, without directly impairing his access to the road from the improvements on his land."
Judge Luther Day, speaking for this court in that case, among other things, pertinently said:
"Before a party is entitled to recover, it must be determined that the thing taken for the public use, for which he asks compensation, is his private property. Whatever other injury he sustains by the opening or alteration of a highway, is compensated only by his interest in the public welfare.
"* * *
"The record does not show that the plaintiff proposed to prove any specific facts tending to show that he had been, in any manner, molested in the enjoyment of his farm and homestead; or that the convenience of his access therefrom to the highway had been, in the least, diminished by the alteration of the road. The evidence did not necessarily tend to prove the taking or invasion of the plaintiff's land or any of its appurtenances. The proof, which the record, in general terms, shows was offered, would be consistent with the hypothesis, that the alteration in the road complained of, was remote from the plaintiff's land, and only rendered the road less commodious in a public rather than in a private point of view."
For the reasons here given the writ prayed for is denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.