(dissenting). I agree with Judge Reynolds that the judgment in Claim No. 32839 should be affirmed; but I do so because of the concession of the State in this court that the award and judgment are not excessive even if the item of loss of access be eliminated. The State is right, I think, in its argument that damage for loss of access has not been established and that the findings and decision should be modified to eliminate this item from the judgment.
It has not been established that as to these claimants’ rights, the road contiguous to their land is a nonaccess highway; or that as a matter of law any interference with access has occurred by any steps thus far taken by the State. It is a fundamental rule of law, recognized for very many years in this State, that the adjacent land owner has a clear legal right of access to a highway. (Griefer v. County of Sullivan, 246 App. Div. 385, affd. 273 N. Y. 515.) This right exists, as this court noted “ regardless of where title may be ” in the right of way.
If the State took absolute title in fee for highway purposes to the strip between the service road and claimants’ property, rather than an easement, claimants would not be deprived of access by such a taking. The unexercised easement would not interfere with access to a greater degree than a full title would; and in either case the test of damage would be when the interference with access actually occurred. Where an adjacent owner is damaged by the actual impairment to a highway he may recover (Highway Law, § 30, subd. 15).
If his right to access is physically interrupted or interfered with, he may recover; he ought not to recover for loss of access *56because of a mere legal interest acquired by the State; where despite such a legal interest, the adjacent owner’s access continues unimpaired. The decision in Spinner v. State of New York (4 A D 2d 987) rested on a special showing of .damage due to the adverse effect on the market value of the remainder of the property. This is not a rule of general application; it would not usually apply; and there is no showing whatever in this case to justify its application. Dillenbeck v. State of New York (275 App. Div. 871) was a flood case and Robinson v. State of New York (3 A D 2d 326) involved a nonaccess highway. Neither case has any application to the problem before us.
The judgment in Claim No. 32839 should be affirmed as to amount in view of the State’s concession, but the decision should be modified by eliminating the item of damage for nonaccess.
Foster, P. J., Coon and Herlihy, JJ., concur with Reynolds, J.; Bergan, J., dissents, in part, in a memorandum.
Judgment in both claims affirmed, without costs. Settle order.