dissenting. I must respectfully disagree with, my colleagues.
In this case, the Director of Highways is appropriating a parcel of property 1.15 acres across the front of a 146-acre tract of land owned by the Lordstown Realty Corn-pay in order to widen existing state Route No. 45, which is not a limited access highway.
After the appropriation, the Lordstown Realty Company will remain the owners of approximately 145 acres of said tract of land still abutting on re-located state Route No. 45.
The appellee-property owner contends that the appropriation of the 1.15-acre tract in “fee simple — all right, title and interest” has the legal effect of extinguishing the right of access to the highway possessed by the remaining 145 acres which will abut upon re-located state Route No. 45, and, further, that he should be compensated for this loss as damages to the residue at the time of the appropriation proceedings.
This simply is not so.
I do not disagree with the legal proposition that, as a result of the taking of the parcel in “fee simple — all right, title and interest,” the property owner is divested of all rights he possessed in the parcel being taken for highway purposes.
However, the right of access to the highway from the remaining 145 acres which continue to abut on state Route No. 45, is a property right of the remaining 145-acre tract and not a property right of the 1.15-acre tract being taken for highway purposes.
It is the established law of Ohio that an abutting owner’s rights to light, air, view, ingress and egress are property which may not be interfered with or appropriated without making compensation therefor. Crawford v. Delaware, 7 Ohio St. 460; Cincinnati & Spring Grove Street Ry. Co. v. Cumminsville, 14 Ohio St. 523; Railway Co. v. Law rence, 38 Ohio St. 41; Cincinnati v. Whetstone, 47 Ohio St. 196; Varwig v. Cleveland, Cincinnati, Chicago & St. L. Rd. Co., 54 Ohio St. 455; McQuigg v. Cullins, 56 Ohio St. 649; *241Baltimore & Ohio Ry. Co. v. Lersch, 58 Ohio St. 639; Lotze v. Cincinnati, 61 Ohio St. 272; Kennear Mfg. Co. v. Beatty, 65 Ohio St. 264; Callen v. Columbus Edison Electric Light Co., 66 Ohio St. 166; Schimmelmann v. Lake Shore & Michigan Southern Ry. Co., 83 Ohio St. 356; Port Clinton v. Fall, 99 Ohio St. 153; Smith v. Central Power Co., 103 Ohio St. 681.
It is also the general rule in Ohio that it is immaterial whether the public holds the fee of the highway or street, or whether it has merely an easement, so long as it holds upon the same defined uses. Scioto Valley Ry. Co. v. Lawrence, 38 Ohio St. 41; Callen v. Columbus Edison Electric Light Co., supra; Schaaf v. Cleveland, Medina & Southern Ry. Co., 66 Ohio St. 215.
Callen v. Columbus Edison Electric Light Co. states at page 174, this part of the law succinctly, as follows:
“* * * there is no substantial difference in the right of the owner of lands abutting upon a country highway in such highway and that of the owner of a lot abutting on a city street in such street. In the one case, where the fee is in the landowner, his rights in and over the streets are in their nature legal, while if the fee be in the public, the lawful rights of the abutting owners are in their nature equitable easements. In both situations the right of the public is for road or street purposes, and is necessarily limited to such control as is necessary to accomplish those purposes.”
If such a property right exists it can only be extinguished by making compensation therefor.
If the Director of Highways wishes to interfere with such right and cannot purchase it from the owner, he may appropriate the right as he appropriates parcels of land on which the highway itself is to be constructed.
If the Director of Highways finds it necessary to appropriate property for highway purposes, including existing rights of access, he must follow B. 0. 5519.01, the pertinent part of which reads as follows:
“If the Director of Highways is unable to purchase property for any purpose authorized by Chapters 5501., *2425503, 5505, 5511, 5513, 5515, 5517, 5519, 5521, 5523, 5525, 5527, 5529, 5531, and 5533. of the Revised Code, he shall first enter on the journal of the department of highways a finding that it is necessary, for the public convenience and welfare, to appropriate such property as he deems needed for such purposes. Such finding shall contain a definite, accurate, and detailed description of the property, and the name and place of residence, if known or with reasonable diligence ascertainable, of the owner of the property appropriated.”
R. C. Chapter 5511 is entitled “State Highway System,” and R. C. 5511.02 specifically sets forth the director’s power to create “limited access highways” and “freeways.” R. C. 5511.02 reads, as follows:
“The Director of Highways may lay out, establish, acquire, open, construct, improve, maintain, regulate, vacate, or abandon ‘limited access highways’ or ‘freeways’ in the same manner in which the director may lay out, establish, acquire, open, construct, improve, maintain, regulate, vacate or abandon highways. The director, board, or municipal authority shall have all additional authority relative to such ‘limited access highways’ or ‘freeways’ as he possesses relative to highways, including the authority to acquire by gift, purchase, condemnation, or otherwise land required for right of way.
“Where an existing highway, in whole or part, has been designated as, or included within, a ‘limited access highway’ or ‘freeway,’ existing easements of access may be extinguished by purchase, gift, agreement or by condemnation.
“As an adjunct of any ‘limited access highway’ or ‘freeway,’ the director, board, or municipal authority may lay out and construct highways and drives, to be designated as service highways, to provide access from areas adjacent to a limited access highway or freeway.
“A ‘limited access highway’ or ‘freeway’ is a highway especially designed for through traffic and over which abutting property owners have no easement or right of access by reason of the fact that their property abuts *243upon such highway, and access to which may be allowed only at highway intersections designated by the director.
“Limitations imposed on the mileage of state highways shall not apply to highways established under this section.”
In the instant case, the Director of Highways, pursuant to E. C. 5519.01, made a finding that it was necessary to appropriate 1.15 acres of land belonging to Lordstown Eealty Co. in “fee simple — all right, title and interest,” but did not declare or find that relocated state Eoute No. 45 was to be a limited access highway, nor did he include any description required by E. C. 5519.01 that would indicate that he intended to appropriate the access rights of any abutting property owner.
A limited access highway is a type of highway, not an interest in real property. E. C. Chapter 5535 is entitled “Types op Highways” and E. C. 5535.02 repeats the definition of a “limited access highway” contained in E. C. 5511.02.
However, as a result of declaring a highway to be a “limited access highway,” the Director of Highways, pursuant to his statutory authority, limits access on new highways and has the power to purchase or appropriate existing access rights on existing highways, which he may designate as “limited access highways.”
In the instant case, prior to the appropriation of the 1.15 acre parcel for highway relocation, state Eoute No 45 had not been designated a “limited access highway,” and Lordstown Eealty Co. had the right of access from its 146-aere tract to state Eoute No. 45.
After the appropriation of the 1.15-acre tract, the remaining 145 acres belonging to Lordstown Eealty Co. still abuts on relocated state Eoute No. 45 and, because of that fact, Lordstown Eealty Co. still had the right of access from said 145 acres onto said relocated state Eoute No 45.
The position of the trial judge on the contention of the property owner that the taking of the 1.15-acre parcel in “fee simple — all right, title and interest” extinguished the access rights of the residue of.the property owner’s prop*244erty for which he must be compensated at the time of the appropriation proceedings appears from the record to he in a state of contradiction.
The trial judge overruled the objections of counsel for the property owner to the following questions and answers asked of Mr. Robert Weinkauf, an engineer for the state highway department, on direct examination:
“Q. Now Mr. Weinkauf, after the highway is completed, is there going to be any limitation of access to the property?
“A. The plans will show — the plans do show no physical barrier of any kind — no barrier or restriction.”
“Q. Mr. Weinkauf, do the plans show any fencing by the highway after the highway is completed?
“A. There is no fencing of any kind provided on this project.”
On cross-examination of Mr. Weinkauf, counsel for the property owner asked the following question and received the following answer:
“Q. When counsel asked you whether or not it was a limited access highway, you said it was not, is that true?
“A. That is true.”
In his general charge to the jury, the trial court said:
“Now I want to tell you in regards to the rights remaining to the property owner, so there will be no confusion, that though the State is taking the fee simple, as I have previously described, the property owner does retain as a right incident to ownership abutting on a highway the right of reasonable ingress and egress.”
Yet, the trial court permitted a Mr. Natale, over objection, to testify as follows:
“As far as I am concerned, they are taking all right, title and interest, that is just as though I would sell you . a piece of my property. I would no longer own it. You could do what you wanted, and I would lose all of my rights to this property, and the State can sell it; the state can fence it; the State could permit billboards to be put there; permit structures and the property owners would have to be under constant fear that all along about a third of a mile of *245the frontage, which is the most important part of the property, he will never know exactly what will happen.” (Emphasis added.)
In my opinion, this testimony was erroneons and the state’s objection to it shonld have been sustained. It is not a correct statement of the law as it applies to the parcel being taken in this case.
Not only that, bnt, if the property owner continues to have a right of access in the residue of his property abutting on state Route No. 45, then the state cannot fence the 1.15-acre tract appropriated, as Mr. Natale testified, because such a fence would interfere with said right of access.
The prejudicial effect of such testimony by Mr. Na-tale, and the estimates of value to which he testified based upon such erroneous conclusions, is shown on pages 117 and 118 of the record:
“Q. Now, if at some future date the state would fence this property, would you consider this to be damaging to the remainder of this parcel?
“A. Absolutely.
“Q. And did you take this into consideration in arriving at your damages in this case?
“A. This is one of my major considerations.
“Q. How much weight did you give this factor in your damages to the remainder as to the fact that the State was taking all right, title and interest in this property?
“A. I placed a value of damages there of $25,000.”
In my opinion the Common Pleas Court committed prejudicial error in permitting Mr. Natale to testify, over objection, as to loss of access and the conclusion that the state had a right to fence along the new right of way line and thus eliminate the right of access from the residue to relocated state Route No. 45.
A second reason why I believe this judgment should be reversed is found in the court’s special instruction No. 8, which reads:
“You are instructed as a separate proposition of law that by virtue of the state’s having appropriated all right, title and interest in fee simple of the parcel of land known *246in this proceeding as 74-WD the director after determining that any snch real property is no longer required for highway purposes may at any time after this appropriation convey or transfer to any private persons, firms or corporations, all or any lesser estate or interest in said parcel to the highest bidder at public auction. Said real property, except for reasonable ingress and egress to the landowners abutting property, can he used by any such private persons, firm or corporation for any lawful purpose whatsoever regardless of what the present plans and specifications of the state highway director show for the reconstruction of State Route No. 45.”
This special instruction is faulty in two respects.
First, it permits the jury to speculate as to damages to the residue.
As a general proposition, the amount of compensation to which a landowner, whose property is appropriated, is entitled depends upon the extent of the interest appropriated (Dodson v. Cincinnati, 34 Ohio St. 276), and the compensation paid him should be such as to make him whole — that is, such as to put him in as good a financial position after the appropriation as he was in before the appropriation. Russell v. Jaster, 28 Ohio Law Abs. 325.
Where an entire tract is taken, the market value thereof is the measure of recovery. But where only part of a tract is taken, as in the instant case, the elements of recovery are the market value of the part taken and the damages to the remaining property.
Generally speaking, where part of a parcel of land is taken for public use, the measure of compensation and damages is the difference between the value of the whole land immediately before and the value of the remaining part immediately after the taking. Atlantic & Great Western Rd. Co. v. Campbell, 4 Ohio St. 583; Powers v. Hazelton & Letonia Ry. Co., 33 Ohio St. 429; Dodson v. Cincinnati, 34 Ohio St. 276; Railway Co. v. Gardner, 45 Ohio St. 309.
The difference in what the residue would sell for, with and without the part appropriated, is the' measure of damages to the residue.
*247The compensation and damages to be recovered in condemnation proceedings must cover all future uses of the condemned property which are, or should be, within the contemplation of the parties at the time of taking, irrespective of the extent of present needs. Ward v. Marietta & Newport Turnpike & Bridge Co., 6 Ohio St. 15; Sears v. Hopley, 103 Ohio St. 46.
However, there are limitations upon the rule of valuation, according to the adaptability of use of the property taken. The difference in the value of the owner’s property caused by the appropriation must be ascertained with reference to the value of the property in view of its present character, situation and surroundings. Powers v. Hazelton & Letonia Ry. Co., supra.
The question being one of present value, the wants to be considered are those of the present. The probabilities of the future are not to be taken into account, except as they affect the present.
The value being that as between seller and buyer today, the land is to be viewed in its condition and surroundings today, the same as it would be by buyers and sellers (Cincinnati Southern Ry. v. Garrard, 8 Dec. Rep. 389).
The uses which may be considered must be so reasonably probable as to have an effect on the present market value of the land, and a purely imaginative or speculative value cannot be considered.
There must be a possibility, considerable enough to be a practical consideration and actually to influence prices (18 American Jurisprudence 880, Section 244).
The value cannot be enhanced by consideration of a purely contingent and prospective character.
The limitations on the right to damages resulting from the exercise of the power of eminent domain are that such damages must be actual and not merely speculative or contingent (Cleveland & Pittsburg Rd. Co. v. Ball, 5 Ohio St. 568; Powers v. Hazelton & Letonia Ry. Co., supra), proximate and not remote (Symonds v. Cincinnati, 14 Ohio 147; Cleveland & Pittsburg Rd. Co. v. Ball, 5 Ohio St. 568; Lake Shore & Michigan Southern Ry. Co. v. Cincinnati, *248Sandusky & Cleveland Ry. Co., 30 Ohio St. 604), and appreciable (Hatch v. Cincinnati & Indiana Rd. Co., 18 Ohio St. 92).
Certainly, Special Instruction No. 8 is of a highly speculative nature. It is an attempt to paraphrase R. C. 5501.162, which is a permissive statute that may be used by the director if he determines the property is no longer needed for highway purposes.
There is no certainty, as of the date of appropriation, that such a possibility as to the parcel being appropriated will ever occur in the future, nor is it definite that the director will use such power if the land is not needed for highway purposes.
In addition, the last sentence of Special Instruction No. 8 is not a correct statement of the law. If the director were to dispose of the land appropriated in the future to a private owner, there would be no right of ingress and egress “to the land owners abutting property.” Nor would there be any right of ingress and egress from the land owners abutting property onto what had been formerly highway property since such a right would only exist as long as the land abutted on a highway.
Therefore, I am of the opinion the Common Pleas Court committed prejudicial error in giving Special Instruction No. 8.
For these two reasons, I am of the opinion this court should have reversed the judgment and remanded the cause for a new trial.