concurring.
The central issue in this appeal is whether defendant Alderwoods (Oregon), Inc., had a property interest in specific, direct access to Highway 99W that the state could acquire by eminent domain. I conclude that it did not; defendant never had a real property interest to use its actual or any other specific, substitute driveways along its highway frontage. Thus, there was no “private property” to acquire by eminent domain, and the trial court did not err in excluding damage evidence for the purported taking.1
Judge Armstrong’s concurrence concludes that defendant did have a located common-law right of access in and to the highway that the state could acquire in eminent domain, but that this right of access was lost by administrative actions of the state that closed the driveways to highway traffic. 265 Or App at 582-83 (Armstrong, J., concurring). The concurrence ultimately determines that, by the time of the condemnation trial, defendant had no private property interest in highway access to acquire, and that its valuation evidence was properly excluded as immaterial.
The dissent surmises that defendant did have such a property interest (largely because the state pleaded that it did in its complaint and because two state statutes purportedly describe such an interest), that the property interest was not regulated out of existence, and that defendant’s valuation evidence was relevant to the calculation of just compensation for the forced purchase of that interest. 265 *585Or App at 601-02, 610 (Wollheim, J., dissenting). I write to distinguish my analysis of the affected property interest from that of the concurrence, but to join with its ultimate conclusion that the valuation evidence was immaterial.
Briefly recounting the procedural history of the case, the state filed a complaint in eminent domain, seeking to acquire a temporary construction easement on property owned by defendant, as well as “[a] 11 abutter’s rights of access, if any, between [defendant’s property] and the Pacific Highway West [Highway 99W].” At the time that the complaint was filed, defendant had two driveways at the frontage of the property that allowed access to the highway. The property was also connected to the highway by Warner Avenue, a street that runs along one side of the property and intersects with the highway. That public approach to the highway is not located “between [defendant’s property] and the Pacific Highway West [Highway 99W],” so the state did not seek to acquire any access right of defendant to the highway through the public street in the eminent domain proceeding. Shortly after the complaint was filed, the state closed the driveways along the front of the property by constructing a curbed sidewalk at those locations and requiring defendant to obtain a permit for any further or additional private approaches to the highway.
Before the condemnation trial, the state filed a motion in limine to preclude the introduction of evidence of any loss of value of defendant’s property caused by the driveway closures at trial. It argued that defendant had no private property interest — that is, no specific “rights of access” in the driveways or otherwise along the frontage— for the state to acquire under Article I, section 18, of the Oregon Constitution. The state contended that, because the complaint sought to obtain only existing access rights along the frontage, and none specifically existed, no compensable taking resulted from the closure of the driveways. Thus, according to the state, any evidence of the loss of value of defendant’s property from that closure was immaterial. Defendant, on the other hand, asserted that, by the complaint, the state sought to acquire specific access rights at the location of the driveways and that the acquisition of that *586private property by the state would diminish the value of defendant’s remaining property. The trial court agreed with the state and granted the motion in limine.
We start with a proposition to which all agree: As a matter of eminent domain law, there is no right to compensation for a loss or restriction of access to an abutting street if access to the property is not completely eliminated by the project for which other property is being condemned. Thus, in City of Salem v. Merritt Truax, 70 Or App 138, 688 P2d 120 (1984), as part of a street-widening project, the city condemned a narrow strip along one edge of a service station property, closing one of its three driveways. We upheld the dismissal of the service station owners’ counterclaim for inverse condemnation of the street access, reasoning that
“[a]n owner of land abutting a street has a common law right to access to his property from the road. However, the rights of abutting proprietors to access to their premises are subservient to the public’s right to free use of the streets. That right is protected by the state’s exercise of its police power. An interference with access rights that is an exercise of the city’s police power is not a compensable taking.
“It is well settled that changing a public road to provide for public safety and convenience is a legitimate exercise of a city’s police power. Thus, we conclude that the closure of defendants’ driveway was not a compensable taking. Defendants point out that the change in driveways has made it less convenient to enter the station and has resulted in a decline in business. The closure has also made it harder for defendants to get fuel, because it must now be specially delivered because tanker trucks can no longer pull into the station. Those matters are damnum absque injuria and not compensable.”
Id. at 140-41 (citations omitted); see also Argo Investment v. Dept. of Transportation, 66 Or App 430, 432, 674 P2d 620 (1984) (“Plaintiffs continue to have access to their property for the principal purpose for which it is used. The fact that traffic has to use a more circuitous route * * * may be inconvenient, affecting the use, but it does not rise to the constitutional magnitude requiring compensation.”).
*587The common law of Oregon on access rights to highways was summarized in a similar way in William E. Duhaime, Limiting Access to Highways, 33 Or L Rev 16, 34 (1953), as follows:
“It is submitted that, in view of the cases above discussed, the common law of Oregon is as follows:
“(a) A total deprivation of all access to a piece of property is a ‘taking’ within the meaning of the Oregon Constitution for which compensation must be paid.
“(b) Where some means of ingress and egress remains, although not the most convenient one, access to a particular street or highway may be regulated or prohibited without liability to the abutting owner for compensation, so long as the regulation or prohibition is to promote the public use of the highway for highway purposes. Here, the injury suffered by the abutting owner is consequential to a lawful use of the highway, and is damnum absque injuria. No distinction should be made between a tangible improvement to the highway (change in grade, etc.) and an intangible one (control of access), so long as some other means of access is available, the improvement is lawful, the improvement does not physically encroach upon the abutting property, and the improvement is for highway purposes.”
Put another way, the only property interest in street access held by an abutter at common law is a general, unfixed, right to access the street. That is, a general right of access to the street exists either directly from the frontage of the property along the street or indirectly from a private or public approach that borders the property. Unless a government takes that entire interest — both the direct and indirect access — no compensation is owed under Article I, section 18. As the court noted in ODOT v. Hanson, 162 Or App 38, 44, 987 P2d 538 (1999), rev den, 330 Or 252 (2000):
“At common law, any property owner has a right of access to public thoroughfares. State Highway Com. v. Burk et al., 200 Or 211, 228, 265 P2d 783 (1954). But the right of access is specific to no particular location and, thus, is subject to regulation by the state without compensation as long as some reasonable access remains available. Thus, the court *588was careful to hold in Oregon Investment Co. [v. Schrunk, 242 Or 63, 408 P2d 89 (1965)] that the state was authorized to deny access to a property at one location ‘if adequate means of access remain to the owner at the other street or streets.’ [242 Or at 73.] That makes sense, because the common-law right entitles the owner only to access generally, not access at a particular location. As a result, when the state regulates access merely at a particular location, there has been no taking of the common-law right, because access remains available.”
See also Barrett et al. v. Union Bridge Co., 117 Or 220, 224, 243 P 93 (1926) (same); Deupree v. ODOT, 173 Or App 623, 629, 22 P3d 773 (2001) (“Where access to private property is retained through another public road, even though that access may be less satisfactory, the loss of direct highway access is not compensable.”); Curran v. ODOT, 151 Or App 781, 784-85, 785 n 3, 951 P2d 183 (1997) (“Generally, any act by the state that affects the use of a highway for legitimate ‘highway’ purposes does not result in a taking of access rights to the highway that is compensable under Article I, section 18, even if that action interferes with the abutting property owner’s access to the highway from the property.”); Gruner v. Lane County, 96 Or App 694, 697, 773 P2d 815 (1989) (holding that regulatory restrictions on “abutting landowner’s right of ingress and egress” are not compensable when landowner has adequate alternative means to access property).
As those cases make clear, no compensation is owed to defendant under Article I, section 18, for the loss of the use of its driveways because defendant has no particular “private property” right to use those driveways to travel to and from the highway and, because defendant retains access through Warner Avenue, the state’s action does not take defendant’s general right of access to the highway.
The dissent does not disagree with that constitutional analysis. It concludes, however, that defendant has a statutory property right to use the driveways under ORS 374.035(1), which regulates the conversion of a highway to a throughway. The state concedes that it is condemning a construction easement as part of a throughway conversion project. ORS 374.035(1) provides:
*589“The Department of Transportation may, in the name of the state, acquire by agreement, donation or exercise of the power of eminent domain, fee title to or any interest in any real property, including easements of air, view, light and access, which in the opinion or judgment of the department is deemed necessary for the construction of any throughway, the establishment of any section of an existing state road or highway as a throughway or the construction of a service road. The department may accomplish such acquisition in the same manner and by the same procedure as real property is acquired for state highway purposes, except that in case the acquisition is by proceedings in eminent domain the resolution required under such procedure shall specify, in addition to other provisions and requirements of law, that the real property is required and is being appropriated for the purpose of establishing, constructing and maintaining a throughway.”
(Emphases added.)
ORS 374.035(1) allows the department to exercise the power of eminent domain in order to acquire “any interest in any real property” that is “necessary” to establish a throughway (a highway with no access or dispersed access from interchanges or public streets) or to convert an existing highway to a throughway. In order to convert a highway to a throughway, then, it is necessary to eliminate all access rights of an abutter to the highway — both the direct access from the property frontage and indirect access from an adjacent connecting street. The authority to condemn that entire property interest does not imply, as suggested by the dissent, that there is a “direct access right” — a particular and discrete access easement for highway abutters — that is created by ORS 374.035(1).
That same general right of access, and not a specific easement, is the “right of access” referenced in ORS 374.405, which provides that there are “[n]o rights in or to any state highway, including what is known as right of access” for abutters to state highways constructed, relocated, or reconstructed after May 12,1951. In my view, neither ORS 374.035 (directly) nor ORS 374.405 (by implication) creates statutory property interests for particular access to state highways that can only be divested from the abutting property owner *590by a voluntary or forced conveyance. Therefore, defendant was not owed compensation from the state for its driveways under those statutes.2
The dissent finally contends that the state in this case has pleaded that it must acquire defendant’s property interests in the driveways so that it is now stuck with paying for that acquisition, even if defendant has no such property interests and the state disclaims any intent to acquire those interests. See 265 Or App at 602 (Wollheim, J., dissenting) (“The state cannot, on the one hand, seek to acquire an abutting landowner’s right of direct access through eminent domain and, on the other, claim that there is no right to establish just compensation for the taken property right.” (Emphasis in original.)).
As noted, the state pleaded in its complaint that it intended to acquire “[a] 11 abutter’s rights of access, if any, between [defendant’s property] and the Pacific Highway West.” (Emphasis added.) I interpret that allegation to seek an initial determination of whether there is any right of access at that location. If such a located right of access exists, then the state sought to acquire it by condemnation. If it does not, then the only property to be acquired, and for which compensation is owed, is the construction easement. That is the plain meaning of the words “if any” in the complaint — that a taking is intended only if defendant has a right of access along the frontage. Further, that is the meaning the state gave to the complaint in its pretrial offers of compensation and in its motion in limine, and it is, implicitly, the meaning the trial court gave to the complaint when it granted the motion in limine.
*591In State Highway Com. v. Burk et al., 200 Or 211, 220, 265 P2d 783 (1954), the state filed a complaint seeking to condemn one parcel of land needed for the construction of a nonaccess highway, as well as all rights of access to the new highway, “‘if any there be,”’ from other property not taken. The trial court determined that the condemnation of land for highway construction did not create rights of access in abutting land. Thus, no compensation was owed for loss of any access rights. That determination was affirmed on appeal. The pleading of an intent to take access rights “if any there be” was sufficient to place before the trial court the question of whether any access right or property interest existed at all. The same is true here where the state pleaded an intent to take access rights “if any”3 (Emphasis added.)
Thus, the filing of a complaint did not lock the state into having to pay for something that does not exist. Instead, the pleading required the court to determine if defendant has a property right in the driveways or other specific passageways from its property to the highway that must be acquired by the state in order to limit access to the highway. If so, then the complaint pleads an intent to acquire that property interest and pay just compensation for the property. The state is not, however, obliged to purchase defendant’s driveways simply because it sought to determine if a compensable access right existed.
In sum, because defendant has no real property interest in the particular driveways that it used to access Highway 99W or other specific “rights of access” along the property’s frontage with the highway, and because the state did not propose to acquire defendant’s general right of access that might exist at common law or under state statutes, the only “private property” that was taken by the state through the complaint and under the judgment was the construction easement. Thus, the trial court did not err in refusing *592to admit evidence of just compensation for any diminution in value of defendant’s property after the elimination of the driveways. Its judgment should be affirmed.
The eminent domain proceeding on appeal was the formal exercise of the state’s condemnation authority under Article I, section 18, of the Oregon Constitution, which provides that “[plrivate property shall not be taken for public use *** without just compensation.” The Fifth Amendment to the United States Constitution imposes the same requirement. We have interpreted both takings clauses to have the same reach.
Even if defendant did obtain a discrete access right from the state for its driveways, any access rights exist solely by express or implicit permission from the state under the statutory regime set out at ORS 374.300 to 374.360 and rules adopted by the Department of Transportation, OAR chapter 734, division 51. The remedy for closure of an approach road to a state highway is the administrative claim process for compensation that is set out in ORS 373.313. Such a permit or allowance is not, in my view, “private property” that can be “taken” for “just compensation” under Article I, section 18. See Kinross Copper Corp. v. State of Oregon, 160 Or App 513, 519, 524-25, 981 P2d 833, adh’d to on recons, 163 Or App 357, 988 P2d 400 (1999), rev den, 330 Or 71 (1999) (denial of wastewater discharge permit is not an inverse condemnation of unpatented mining claim; “an owner cannot maintain an action for loss of a property right that it did not ever have”).
Even if the complaint actually stated an intent to take specific and located access rights along the frontage, the dissent does not explain why the state’s motion should not be treated as an abandonment of that claim. See ORCP 23 A (leave to amend complaint shall be freely given when justice so requires); cf. ORCP 23 B (allowing amendments to pleadings to conform to the evidence at trial).