State v. George M. Delany and Patricia Ann Delany

Appellant=s Motion for En Banc Rehearing Denied; and Dissenting Opinion to the Denial of En Banc Rehearing filed November 18, 2004 Appellant=s Motion for En Banc Rehearing Denied; and Dissenting Opinion to the Denial of En Banc Rehearing filed November 18, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00052-CV ____________ THE STATE OF TEXAS and THE TEXAS DEPARTMENT OF TRANSPORTATION, Appellants V. GEORGE M. DELANY and PATRICIA ANN DELANY, Appellees On Appeal from the 212th District Court Galveston County, Texas Trial Court Cause No. 00CV0008 DISSENTING  OPINION TO  THE  DENIAL  OF  EN  BANC  REHEARING George and Patricia Delany sued the State of Texas and the Texas Department of Transportation for inverse condemnation seeking compensation for the alleged denial of access to their unimproved 3.48 acre tract of land in Galveston County. After a bench trial, the court found for the Delanys and awarded them actual damages for Athe State=s material and substantial impairment of access,@ sanctions, prejudgment interest, and court costs for a total judgment of $497,637.80. A panel of this court subsequently affirmed the trial court=s judgment.[1] The State now seeks en banc rehearing. Because I find both the law and logic of the panel=s opinion to be seriously flawed, I respectfully dissent to the denial of en banc rehearing. In 1947, the State condemned a 300 foot-wide right-of-way for the construction of the AGulf Freeway,@ also known today as Interstate Highway 45. The new highway intersected Johnny Palmer Road. In 1965, the State began constructing an overpass to enable traffic on Johnny Palmer Road to pass over IH-45. To facilitate the construction of a highway exit for Johnny Palmer Road, the State condemned an additional 5.733 acres belonging to the Delanys, leaving a remainder of 3.48 acres. Although the remainder abutted the highway right-of-way, the Delanys had no direct access to any public road. The nearest road was the Johnny Palmer Road exitCapproximately 50 to 60 feet away. The Delanys could have applied for a permit for as many as three driveways across the right-of-way to gain access to the Johnny Palmer Road exit, but they never applied for a permit. In 1998, the State relocated the Johnny Palmer Road exit for safety reasons, and removed the former access road. Now, the Delanys= nearest public road is the IH-45 frontage road. The Delanys still have potential Aaccess@ to IH-45 in that the State has agreed to permit them to have two driveways of 240 and 590 feet across the highway right-of-way. The Delanys, however, have not availed themselves of this offer. To succeed in a suit for inverse condemnation, the plaintiff must show (1) the government physically appropriated or invaded his property, or (2) it unreasonably interfered with his right to use and enjoy the property, such as by restricting access or denying a permit for development. Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992). Here, the Delanys do not contend the State appropriated or invaded their property. Rather, they claim they Ahave been deprived of all access on and off the Property, effectively landlocking the Property.@ Were this allegation true, the Delanys undoubtedly would be entitled to compensation. However, the Delanys have always had a limited right of access to the highway, and that is what they still have. See Pennysavers Oil Co. v. State, 334 S.W.2d 546, 549 (Tex. Civ. App.CSan Antonio 1960, writ ref=d). The panel opinion relies heavily on the fact that property owners abutting a highway have a compensable, constitutionally protected property right in an easement of access to and from the highway. See DuPuy v. City of Waco, 396 S.W.2d 103, 108 (Tex. 1965). However, the landowner is only guaranteed Areasonable@ access, and a landowner=s access is not materially and substantially impaired if he retains access to his property by way of a different street or a more circuitous route. Carson v. State, 117 S.W.3d 63, 69 (Tex. App.CAustin 2003, no pet.). Here, the State offered evidence that a driveway permit already has been conditionally granted that would allow the Delanys access to IH-45 via two driveways if and when they should ever desire such driveways. Citing State v. Fuller, the panel rejected this argument under the mistaken theory that the State has abandoned the right-of-way of the former Johnny Parker Road exit and, thus, no access rights may now be granted across it. 407 S.W.2d 215, 221 (Tex. 1966). This rationale is patently erroneous. The State acquired absolute title to the land in 1965. The old Johnny Palmer Road exit has been removed, but the State still holds the land in fee simple. Thus, while Fuller stands for the proposition that the State, in some circumstances, may not be required to grant access across the land, nothing in Fuller suggests the State does not possess the power and authority to do so if it chooses. In this sense, the State is correct in its assertion that the Delanys= suit is premature. If the State should on some future occasion refuse access to IH-45 by denying driveway permits across its property, an inverse condemnation case undoubtedly would ripen. Until such time, the Delanys can only offer evidence of a potential inverse condemnation. Whether access rights have been materially and substantially impaired is a question of law. State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996). Accordingly, we have no obligation to defer to the trial court=s conclusions in this regard. See Interstate Northborough P=ship v. State, 66 S.W.3d 213, 220 (Tex. 2001). Prior to the relocation of the Johnny Palmer Road exit, the Delanys had potential access to IH-45 frontage road via driveways to the Johnny Palmer Road exit ramp and thence to Johnny Palmer Road and thence to the Johnny Palmer entrance ramp. Today, the Delanys have potential access via driveways directly to the IH-45 frontage road. The Delanys argue that such driveways are an impairment of their former potential access because the driveways will have to be considerably longer than those that could have been constructed before the Johnny Palmer Road exit was relocated. However, circuity of travel is, as a matter of law, non-compensable. State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988). Moreover, the driveways will provide a more direct and shorter route to IH-45 than the old Johnny Palmer Road exit. While framed in terms of a denial or impairment of access, the Delanys real complaint is that the commercial value of their property was $2.50 per square foot before the Johnny Palmer Road exit was relocated. Today, the property=s value is approximately 254 per square foot. The Delanys contend they are entitled to recover the difference in the value of their property before and after the Johnny Palmer exit was relocated. The Delanys may well have suffered a diminution in the value of their property, but it is well established that the benefits which come and go from the changing currents of travel are not matters in respect to which any individual has any vested right against the judgment of the public authorities. See State Highway Comm=n v. Humphreys, 58 S.W.2d 144, 145 (Tex. Civ. App.CSan Antonio 1933) (quoting Heller v. Atchison, T. & S. F. Ry. Co., 28 Kan. 625 (1882)). AIf the public authorities could never change a street or highway without paying all persons along such thoroughfares for their loss of business, the cost would be prohibitive. The highways primarily are for the benefit of the traveling public, and are only incidentally for the benefit of those who are engaged in business along its way. They build up their businesses knowing that new roads may be built that will largely take away the traveling public. This is a risk they must necessarily assume.@ Id. In fact, the Texas Supreme Court has never allowed recovery in an inverse condemnation case for damages resulting from a diversion of traffic or a circuity of travel. State v. Schmidt, 867 S.W.2d 769, 774 (Tex. 1993). If the State had decided to build a new freeway a mile from the Delanys= property, the Delanys likewise would have lost the commercial value of their land, Abut no abutting property owner has a vested interest in the traffic that passes in front of his property, and if this traffic is diverted by the State building a road at another place, and the traveling public prefer to travel the new road and abandon the old road, the State cannot be held liable for any loss of trade suffered by an abutting landowner on the old abandoned road.@ Pennysavers, 334 S.W.2d at 549. A landowner simply has no vested interest in the volume or route of passersby. Schmidt, 867 S.W.2d at 774. In summary, a landowner may not Arecover damages for inverse condemnation under Tex. Const. art. I, ' 17 where the government has not physically appropriated, denied access to, or otherwise directly restricted the use of the landowner=s property.@ Westgate, Ltd., 843 at 450. Yet, this is precisely what this court has permitted the Delanys to do. Accordingly, I respectfully dissent to the denial of en banc rehearing. /s/ J. Harvey Hudson Justice Judgment rendered and Dissenting Opinion to the Denial of En Banc Rehearing filed November 18, 2004. Chief Justice Hedges, Senior Chief Justice Murphy,* and Justices Yates, Anderson, Fowler, Frost, Seymore, and Guzman voted to deny rehearing en banc. Justice Hudson dissented to the denial of en banc rehearing. Justice Edelman joined the dissent. [1] See State v. Delany, No. 04-03-00052-CV, 2004 WL 503632 (Tex. App.CHouston [14th Dist.] Mar. 16, 2004). * Senior Chief Justice Paul C. Murphy sitting by assignment.