State ex rel. State Highway Commission v. Brock

OPINION PER CURIAM. The motion for rehearing is denied, the original opinion filed herein withdrawn and the following substituted therefor: NOBLE, Justice. Woodrow Wilson Brock and Charleen, his wife, (hereafter referred to as Brock) and John J. Radosevich and Ann, his wife, (hereafter referred to as Radosevich) owned land fronting on U.S. 66, a twenty-four foot, two-lane paved highway. The State Highway Commission (hereafter referred to as Commission) has appealed from the amount of damages awarded to the property owners by a jury. Radosevich owned approximately 150 acres with some 2140 feet frontage on the highway, which was used for a sawmill operation. The Commission took approximately 15 acres and the direct access to the highway. A two-lane paved frontage road was installed between the highway and the Radosevich property to which that property had access and which, in turn, gave access to the new four-lane interstate highway at the Thoreau interchange, a mile and a half east of the Radosevich land. Brock owned four tracts, one of which is similar to the Radosevich property, containing 430 acres, of which approximately 37 acres were taken. The other three tracts abutting on U.S. 66 constitute parts of the Brock ranch. Approximately 85 acres of these lands were taken, together with the direct access to the new highway. Frontage roads were constructed on the northern side of the new highway extending east and west from the Thoreau interchange, along both the Radosevich and Brock lands, and on the southern side extending from the western limits to the interchange. Access across ditches to the frontage roads are at the same places as they had entrances or roads prior to construction of the divided highway. It appears from the record that the general route from the ranch headquarters to the highway is substantially the same route as before construction of the new highway, but that the ranch entrance at the highway is now not as wide as prior to the new construction. There is no longer any way for Brock to drive cattle across the highway from one side to the other. An underpass was provided for driving cattle from the pasture lying south and east of the interchange to one lying immediately north of the highway, but Brock complains that his cattle cannot be made to use it. Even though ten separate points are relied upon, this case turns on whether noncompensable elements of damage may be considered in applying the "before and after” rule as a measure of damages. Radosevich and Brock argue that upon authority of Bd. of Trustees v. B. J. Service, Inc., 75 N.M. 459, 406 P.2d 171; Bd. of County Comm’rs v. Harris, 69 N.M. 315, 366 P.2d 710 and Tucumcari v. Magnolia Petroleum Co., 57 N.M. 392, 259 P.2d 351, this court is committed to the "before and after” rule as a measure of damages, whereby the property owner is entitled to recover, as compensation, the amount by which the fair market value of his property has been depreciated by the taking. This rule, they contend, requires consideration and payment for the loss occasioned by the inability of highway travelers to readily get to roadside businesses, as a necessary element of the depreciation in the fair market value of the remainder after the taking of direct access. We cannot agree. It is well settled in this State that mere inconvenience resulting from the closing of streets or roads which requires circuity of travel by those abutting on such roads to reach the main highway system does not give rise to a legal right in one so inconvenienced, when another reasonable, although perhaps not equally accessible, means of ingress and egress is afforded. Mandell v. Bd. of Comm’rs, 44 N.M. 109, 99 P.2d 108. And, once reasonable access is given to the main highway system by means of frontage roads, any circuity of travel occasioned by the loss of direct ingress and egress is noncompensable. State ex rel. State Highway Commission v. Danfelser, 72 N.M. 361, 384 P.2d 241. It is equally well settled that loss of business or of prospective business, because the traveling public cannot reach a roadside business establishment as readily as before the restriction of direct access, amounts only to a diversion of traffic and is non-compensable. State ex rel. State Highway Commission v. Silva, 71 N.M. 350, 378 P.2d 595; State ex rel. State Highway Commission v. Lavasek, 73 N.M. 33, 385 P.2d 361. We said in Lavasek: “If a new controlled-access highway is located on the right-of-way of the old conventional highway where the moving traffic would, except for traffic restrictions, have direct and easy ingress and egress from the highway to the abutter’s property, the state may, nevertheless, restrict the entrance and exit of the traveling public if such restriction appears reasonable as an exercise of its police power to regulate traffic * * * and the state, in the exercise of its power to construct highways and control traffic, is not liable for loss of trade to abutting landowners as a result of the exercise of its police power.” A review of the record in this case makes it apparent that witnesses for Brock and Radosevich considered that they are entitled to the same free, full, complete and direct access to the new highway that they formerly had to the old two-lane 66. It is equally apparent to us that the landowners’ real complaint was loss of prospective business because the traveling public cannot reach their prospective business establishments not yet constructed but which it was thought could be constructed on lands abutting the new highway, as readily as from the old conventional 66. Unquestionably, witnesses considered the value of abutting lands “before taking” as having a potentially increased value because they might have been utilized for homesites or a roadside business. They clearly based their greatly reduced “after” valuation for the remaining property upon the loss of prospective business because the public can no longer reach such prospective business property as readily and directly as from the old highway. Without attempting to set out the testimony of the expert witnesses at length or to deal with each witness, we think the basis of the expert opinion can be summed up by the following, respecting depreciation in value to the remainder caused by the restricting of the entrance and exit of the traveling public as an exercise of the state’s police power to regulate traffic: “Q. In other words, the ability of traffic to go by immediately by those businesses on the highway, is that right, sir? “A. The inability of traffic to get off to a business after one was established there. =t= * * * * * “Q. So it isn’t a question of access, it’s a question of loss of traffic, isn’t that it? .“A. That is correct, sir.” And after testimony that the frontage road dead ends just beyond the Radosevich land: “Q. You considered that as a part of your appraisal of these damages? It dead ends down west of the Radosevich property— “A. I considered it as reducing the accessibility somewhat, yes sir. “Q. And therefore reducing the value, is that right? “A. Yes, sir.” And in respect to Brock’s land: “Q. Now, you tell us that you have lost that, so I am asking you if you mean by that that the traffic, those — the lands there are no longer available for that kind of business? “A. That’s right. “Q. So that you have lost the sites because traffic can no longer drive directly off the highway on to these " properties? “A. That’s right.” A reading of the record ' makes it apparent to us that the real basis of the claims of Brock and Radosevich to damages, and the opinion of their appraisers respecting the reduced value of the remaining property is the denial of direct and unrestricted access by the public from the interstate highway. They ask how those factors can be eliminated under the “before and after” rule which they argue requires an appraisal of the market values “before and after” and the subtraction of one from the other. The identical question was posed in Bd. of County Comm’rs v. Slaughter, 49 N.M. 141, 158 P.2d 859, where we said that ordinarily a property owner is entitled to receive the difference between the “before and after” value, but that where non-compensable elements of damage affect the value to the remaining property, an exception to the general rule is recognized so that such noncompensable element is eliminated. In Slaughter, as here, the state and the abutting landowner differed as to the elements to be considered in arriving at the “just compensation” required by art. II, § 20 of the Constitution; § 22-9-39 et seq., N.M.S.A. 1953, for land not actually taken but injuriously affected. Slaughter expressed the proper method of arriving at such just compensation under the “before and after” rule, as: “The general rule for arriving at just compensation for property not taken but adversely affected is the so-called ‘before and after’ rule; and this poses the question : What was the value before the taking; and what is now the market value after the taking? The owner of the property, ordinarily, is entitled to receive the difference between these sums. 20 C.J. 730; 29 C.J.S. Eminent Domain § 139. However, the vast majority of the courts approve a definite exception to this rule in that it is recognized that there are elements of damage for which no compensation will be given even though the market value may be adversely affected. 20 C.J. 779, 29 C.J.S., Eminent Domain, § 162. Specifically, with reference to this case, the rule is that ordinarily no person has a vested right in the maintenance of a public highway in any particular place. That exception is based upon the consideration that the State owes no duty to any person to send public traffic past his door. * * * ” We further said in State ex rel. State Highway Commission v. Lavasek, supra, that: “The State Highway Commission undoubtedly has the right in the interest of public safety not only to regulate the means of entry to and exit from a heavily-traveled highway by the public, but, also, to regulate the means and places of access by abutting property owners. * * ****** “Any diminution in the value of his property suffered by an abutter merely as the result of restricting the entrance and exit to and from the highway by the traveling public, in the reasonable exercise of the state’s police power, is only a result of a diversion of traffic and is non-compensable.” Since construction of the divided four-lane highway, Brock and Radosevich must travel the frontage roads in only one direction to reach the interchange. That, however, would be equally true if they had direct access to one lane of the divided highway. The inconvenience to an abutter having access to a frontage road so that his travel is no more circuitous than that of the traveling public is non-compensable. See State v. Lavasek, supra. No material change in the road leading from the Brock headquarters to the highway has been pointed out to us. Brock and Radosevich took no cross-appeals. Instructions that denial of Brock’s former right to drive his cattle across the highway was an assertion of the state’s police power and any damages suffered thereby are non-compensable, and that delays caused by flooding or snow on the frontage roads are non-compensable became the law of the case. The trial court erred in permitting testimony of values which included noncompensable elements of damages. Bd. of Trustees v. B. J. Service, Inc., supra; Bd. of County Comm’rs v. Harris, supra; and Tucumcari v. Magnolia Petroleum Co., supra, do not, in our view, express a different view. No questions of non-compensable elements of damages were present in any of those cases. There was a change of grade in Harris which made the abutter’s ingress and egress more difficult but it did not involve the exercise of the state’s police power in traffic regulation. The testimony in B. J. Service, Inc. and Tucumcari v. Magnolia Petroleum Co. concerned compensable elements of damage so that the general rule referred to in Slaughter was clearly applicable. The instant case is controlled by Slaughter and requires application of the exception there enunciated. In the instant case, no testimony concerning compensable elements of damage has been pointed out to us except the value of the land taken. The damages recoverable herein may, accordingly, not exceed the value of the land taken. The jury did not fix that value. For the reasons stated, the judgment will be reversed with direction that the judgment heretofore entered be set aside and a new trial granted. It is so ordered. COMPTON and CARMODY, JJ., concur. MOISE and LaFEL E. OMAN, Judge, Court of Appeal, dissenting.