(dissenting).
I would affirm the trial court and compel the state to initiate condemnation proceedings. I have two reasons why we should so hold.
First, I think the record is sufficiently clear that CurrelFs predecessors in title did in fact own Lot 1 as well as Lots 4 and 5 at the time the service road was constructed in the 1940’s. This brings the case clearly within the Johnson Bros, case cited by the majority.
Secondly, even if Currell’s predecessors did not own Lot 1 at the time of the construction of the service road, I believe it would be immaterial in deciding this case. It is admitted by the state that Currell’s business use of the property, upon construction of 1-94 in 1973, has been severely restricted by closing off the service road. Indeed, access is very difficult, and visibility of the building formerly possible has been cut off not only by the highway, but also by sound barriers. The building was used by a real estate business which had to be moved by reason of the loss of access.
It is clearly the law in Minnesota that one who owns land across which a street or highway is built may, as a result of that highway, gain permanent access rights which cannot be taken without compensation. What difference does it make if a street or highway is moved and, as a result of the change in design or construction, access is provided which previously didn’t exist? The latter should be protected as well as the former.
If landowners abutting the old Hudson Road of the 1930⅛ had access and, if by reason of construction in the 1930’s and 1940’s other landowners are given access either to the highway directly or indirectly by a service road, it makes no sense to me to hold that the landowners at the time of the original highway construction have a legally protected right but landowners abutting a revision of the highway do not.