dissenting.
This is an eminent domain proceeding brought by the Oregon Department of Transportation (ODOT or the state) against defendant Alderwoods (Oregon), Inc. Defendant assigns error to the trial court’s granting of the state’s motion in limine to exclude evidence at trial of the diminution in value of defendant’s property resulting from the condemnation of defendant’s abutter’s right of direct access to and from SW Pacific Highway (Highway 99W). The two concurring opinions present alternative rationales in support of the trial court’s ruling. Those rationales are based on legal premises not put forward by the state on appeal. They also rely on case law governing regulatory takings rather than eminent domain and overlook controlling Supreme Court precedent that, in my view, requires a reversal of the trial court’s ruling. I accordingly dissent, and write to explain why the case law and statutes compel the conclusion that, in the posture of this case, the trial court erred in excluding defendant’s evidence of damages. Defendant is entitled to its day in court to prove, if it can, the amount of its damages, if any, as a result of the state condemning defendant’s property.
As described in the two concurring opinions, defendant’s property has frontage along Highway 99W and, until this condemnation proceeding, also had direct access to Highway 99W by two driveways. As part of a project to improve Highway 99W, ODOT rebuilt the sidewalks on Highway 99W abutting the subject property and eliminated the driveways.
ORS 35.346 provides that, at least 40 days before the filing of any action for condemnation, “the condemner shall make a written offer to the owner or party having an interest to purchase the property or interest, and to pay just compensation therefor[.]” In compliance with ORS 35.346, in June 2008, the state made an offer to compensate defendant for a temporary easement necessitated by the reconstruction *593of the sidewalks and for its acquisition of defendant’s abutter’s right of direct access to Highway 99W. In an “Acquisition Summary Statement,” the state offered “just compensation” for conveyance of defendant’s access rights:
“CONVEYANCE OF ACCESS RIGHTS
“For the true and actual consideration of $3.150.00. ALDERWOODS (OREGON), INC., an Oregon corporation by merger with YOUNG’S FUNERAL HOME, INC., an Oregon corporation, Grantor, as the owner of the property [described] does convey and relinquish unto the STATE OF OREGON, by and through its DEPARTMENT OF TRANSPORTATION, Grantee, all abutter’s rights of access between the real property herein-above described and [Highway 99W].”
(Boldface in original.)
Defendant declined the offer, and the state, acting through ODOT, initiated this eminent domain proceeding to acquire defendant’s abutter’s right of direct access, as well as a temporary easement on defendant’s property for the purpose of a work area. In September 2008, the state filed a complaint alleging that the acquisition consisted of “[a] 11 abutter’s rights of access, if any,” and “[a] temporary easement across the property * * * for the purpose of a work area.” The complaint prayed that “an assessment be made by a jury empanelled in this action to determine the compensation to be paid for the acquisition herein sought to be condemned and appropriated.”
Before trial, in September 2009, the state filed its first motion in limine, seeking to exclude any evidence of a diminution in the value of the subject property as a result of defendant’s loss of its direct access to Highway 99W. The state contended that such evidence was irrelevant, because the elimination of defendant’s abutter’s right of access did not result in a compensable taking. Rather, the state asserted, in acquiring defendant’s direct access to Highway 99W, it was merely exercising its power to regulate access to a public highway.
While the litigation was pending, in October 2008, ODOT sent defendant notice of “Removal of Unpermitted *594Approach” to Highway 99W, advising defendant that there was no valid permit on record for its driveways and that the unpermitted approach would be removed as a part of the sidewalk upgrade. The notice advised defendant that it could submit an application for an approach or provide proof that the approach was in existence before 1949. The notice specified the amount of time defendant had to respond, but defendant did not make any response to that notice.
In a second motion in limine, the state sought to exclude evidence of any issues that it asserted were related to ODOT’s administrative closure of defendant’s access, including claims of damages.
The trial court granted the state’s first motion in limine.1 The parties then stipulated that defendant was entitled to damages of $11,792, in compensation for the temporary construction easement; they also agreed that the stipulated amount did not include compensation for the taking of any abutter’s right of access to Highway 99W. The trial court entered judgment for defendant, and defendant appeals, assigning as error the trial court’s granting of the state’s first motion in limine.2
In ruling on the state’s motion in limine to exclude evidence of the loss in value of defendant’s property, the trial court accepted the state’s position that, in view of defendant’s indirect access to Highway 99W by way of Warner Avenue, the loss of direct access did not result in a compensable taking; thus, evidence of damages was irrelevant. In reviewing the correctness of that ruling on appeal, the legal question is a narrow one: Is defendant entitled to put on evidence to establish a right to compensation for the state’s acquisition, through eminent domain, of its common-law abutter’s right of direct access to Highway 99W? For the reasons explained herein, I conclude that the trial court erred in ruling that defendant is not entitled in this eminent domain proceeding to put on evidence of damages resulting from the loss of direct access. I would therefore reverse the trial court’s judgment and remand for further proceedings.
*595The Fifth Amendment to the United States Constitution provides that “ [p] rivate property [shall not] be taken for public use, without just compensation.” Similarly, under Article I, section 18, of the Oregon Constitution, “[p]rivate property shall not be taken for public use * * * without just compensation!.]” Thus, when property is “taken” by the government, just compensation must be paid. Thornburg v. Port of Portland, 233 Or 178, 185, 376 P2d 100 (1962).
Private property can be “taken” for public use or benefit through the exercise of the power of eminent domain — that is, the sovereign can exercise its inherent power to take or authorize the taking of any property within its jurisdiction for a public use or benefit. GTE Northwest, Inc. v. Public Utility Commission, 321 Or 458, 466, 900 P2d 495 (1995); Dept. of Trans, v. Lundberg, 312 Or 568, 571 n 1, 825 P2d 641, cert den, 506 US 975 (1992). Under Oregon law, “just compensation” for a taking is determined based on the fair market value of the property that is being taken. Fair market value, in turn, is “defined as the amount of money the property would bring if it were offered for sale by one who desired, but was not obliged, to sell and was purchased by one who was willing, but not obliged, to buy.” Lundberg, 312 Or at 574. If the condemner and the property owner are not able to agree on “just compensation,” the issue is tried to the jury or a court. See ORS 35.305(2) (“Condemner and defendant may offer evidence of just compensation, but neither party shall have the burden of proof of just compensation”).
A taking can also occur through governmental regulation that has the effect of rendering one’s property valueless, Cope v. City of Cannon Beach, 317 Or 339, 344, 855 P2d 1083 (1993), also known as a “regulatory taking.” As the United States Supreme Court explained in Pennsylvania Coal Co. v. Mahon, 260 US 393, 415, 43 S Ct 158, 67 L Ed 322 (1922), “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Under both state and federal law, a regulatory taking will occur when a landowner has been deprived of all substantial beneficial or economically viable use of the property. Homebuilders Assn. v. Tualatin Hills Park & Rec., 185 Or App 729, 734, 62 P3d 404 (2003). An owner of real *596property may bring an inverse condemnation claim against a governmental entity to recover the value of property taken by the entity through a regulatory taking. See Boise Cascade Corp. v. Board of Forestry, 325 Or 185, 187 n 1, 935 P2d 411 (1997). This case presents an opportunity to understand and clarify the intersection of the law pertaining to eminent domain and governmental regulation in the context of public roads.
Contrary to Judge Sercombe’s concurrence, 265 Or App at 587 (Sercombe, J., concurring), it is well settled that, at common law, a landowner whose property abuts a public highway has a right of direct access to the highway from the property.3 That right of access is treated at common law as a property right analogous to an easement and cannot be extinguished through condemnation without compensation. State Highway Com. v. Burk et al., 200 Or 211, 228, 265 P2d 783 (1954) (“When a conventional highway is established, there is attached to the abutting land an easement of access in, and to, the highway. Such an easement is a property right which cannot be extinguished without compensation.”). But, as this court said in ODOT v. Hanson, 162 Or App 38, 44, 987 P2d 538 (1999), rev den, 330 Or 252 (2000), a right of access to public roads is not absolute. We said in that case that “any property owner has a right of access to public thoroughfares,” but the right of access is not specific to any particular location and is subject to regulation by the state in the interests of public safety, without compensation, as long as some reasonable access remains available. Id. at 44. Through regulation, the state is entitled to restrict access to a public highway in the interests of public safety, and no compensation is due if other adequate means of access remain to the owner at other streets. Id. (citing Oregon Investment Co. v. Schrunk, 242 Or 63, 73, 408 P2d 89 (1965)).
*597Apparently recognizing the inherent tension in bringing a condemnation action to acquire defendant’s right of access and also asserting that the taking does not give rise to a right to compensation, on appeal, the state understandably diminishes emphasis on the law relating to eminent domain and focuses instead on the state’s regulatory authority over access to public highways. On appeal, the state recharacterizes the issue as whether its action — which it describes not as the acquisition of an abutter’s right of access but as the elimination of the curb cuts — resulted in a compensable taking. That action, the state explains, is nothing more than an exercise of the state’s regulatory power over access to public highways, and, because defendant retains access to its property from Highway 99W via Warner Avenue, the trial court correctly granted the state’s motion in limine to exclude all evidence relating to “any diminution in value of defendant’s property resulting from the elimination of the curb cuts.” However, the state did not purport merely to regulate defendant’s access to Highway 99W by the elimination of curb cuts. True, it did that in a separate administrative proceeding initiated after this action, but in this action, the state sought also to acquire defendant’s abutter’s right of access through eminent domain.4
It is undisputed that, in bringing this condemnation proceeding, the state acted pursuant to ORS 374.035 (1), which authorizes ODOT to exercise the power of eminent domain to acquire title to or an interest in private property — including access — for the establishment, construction, or maintenance of an existing road as a “throughway”5:
*598“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.”
ORS 374.035(1) (emphases added). When the state exercises the power of eminent domain to improve a state throughway, ORS 374.055 provides, in part, that
“the entire plan of improvement is admissible for the purpose of determining:
“(1) Value of property taken.
“(2) All damages by reason of deprivation of right of access to any highway to be constructed, established or maintained as a throughway.”
In defendant’s view, ORS 374.055 requires that, when the state chooses not merely to regulate, but to acquire the direct access of an abutting landowner through the power of eminent domain, the property owner is entitled to present evidence of damages resulting from the loss of a right of access. For that reason, defendant asserts, the trial court erred in excluding its evidence of damages resulting from the state’s acquisition of its abutter’s right of direct access to Highway 99W.
In addition, as previously noted, 265 Or App at 596 n 3 (Wollheim, J., dissenting), ORS 374.405 provides:
“No rights in or to any state highway, including what is known as right of access, shall accrue to any real property abutting upon any portion of any state highway constructed, *599relocated or reconstructed after May 12, 1951, upon right of way, no part of the width of which was acquired prior to May 12, 1951, for public use as a highway, by reason of the real property abutting upon the state highway.”
Although ORS 374.405 actually proscribes abutting rights of access for state highways constructed after May 12, 1951, defendant asserts that, by implication, it protects access rights like the abutter’s common-law right of access to highways, like Highway 99W, constructed before May 12, 1951. In defendant’s view, when ORS 374.405 is considered in light of ORS 374.035(1) and ORS 374.055, the required conclusion is that, when the state chooses to condemn an abutting landowner’s right of direct access, the owner is entitled to a determination of just compensation by a jury.
Defendant’s view is supported by the legislative history of ORS 374.405. In written testimony before a 1951 legislative committee, the chief counsel of the Oregon State Highway Commission wrote:
“An abutting owner has and possesses access to an existing highway. That right of access is a property right which cannot be taken from him without payment by the public of just compensation. In order to produce an access controlled highway by converting an existing highway into a throughway, the abutting owners’ right of access must be acquired. If it cannot be acquired by agreement, then it may be acquired by the exercise of the right of eminent domain. But in either event, just compensation must be paid to the abutting owner.”
Testimony, House Committee on Transportation, HB 619, Apr 25, 1951 (statement of J. M. Devers, Chief Counsel, Oregon State Highway Commission). The witness explained that, without ORS 374.405, landowners whose properties abutted new roads would have a common-law abutter’s right of access that could only be acquired through eminent domain. Id.
The Supreme Court had an opportunity in Burk, to address the abutter’s common-law right of access in the context of OCLA, §§ 100-16, a predecessor statute of ORS 374.035, which provided that the State Highway Commission may commence an action in the circuit court
*600“for the condemnation of such interests as such owner or owners may have in said real property, including any and all right of access if the real property to be acquired is for right of way purposes, and for determining the compensation to be paid therefor, and the damages, if any there be, for the taking thereof.”
Burk, 200 Or at 227 (internal quotation marks omitted). After concluding that the statute is applicable when the state seeks to convert a conventional highway into a nonaccess highway by condemning only an easement of access, the court stated:
“When a conventional highway is established, there is attached to the abutting land an easement of access in, and to, the highway. Such easement is a property right which cannot be extinguished without compensation.”
Id. at 228.
The state rejects the precedential value of Burk, asserting that more recent case law establishes that no compensation is due as a result of the state’s acquisition of a right of access, unless the taking leaves property landlocked or results in the closure of an access point previously reserved by deed, as in Hanson. In other words, in the state’s view, an acquisition of access to a public highway is simply a way by which the state regulates public highways, and results in a compensable taking only if it results in a total loss of economic value and viable use of the property.6
*601Respectfully, the state’s argument confuses the state’s power of eminent domain, through which the state acquires a property owner’s interest, with the state’s regulatory power, through which the state regulates highways for the public safety. In the regulatory context, it is well established that no compensation is due when the government undertakes to regulate an abutting property owner’s access, unless the owner’s loss of use of the property is virtually total. See, e.g., Schrunk, 242 Or at 68-70 (holding in declaratory judgment proceeding that city’s denial of property owner’s application for access to parking lot from street designated as 24-hour bus loading zone was a reasonable exercise of regulatory power and not a taking); Barrett et al. v. Union Bridge Co., 117 Or 220, 224-25, 243 P 93, reh’g den, 117 Or 566, 245 P 308 (1926) (in action to enjoin bridge developer from constructing bridge approach in front of the plaintiffs property, holding that construction of bridge approach so as to eliminate the plaintiffs access did not result in compensable taking of an abutting owner’s property and access); see also Deupree v. ODOT, 173 Or App 623, 629, 22 P3d 773 (2001) (in inverse condemnation claim, holding that change in grade of a state highway for legitimate regulatory purposes, which did not deprive abutting landowner of all highway access, did not result in “legal damage or injury” within the meaning of ORS 105.755 for which owners are entitled to just compensation); Dept. of Transportation v. DuPree, 154 Or App 181, 185, 961 P2d 232, rev den, 327 Or 621 (1998), cert den, 526 US 1019 (1999) (in inverse condemnation action for widening of state highway, the state’s regulatory change from two points to one point of access was not a taking); Curran v. ODOT, 151 Or App 781, 786-87, 951 P2d 183 (1997) (holding that inverse condemnation claim challenging as a regulatory taking the state’s placement of a guard rail that blocked former access was not ripe for adjudication, where owners had failed to apply for permit for alternative approach, and it therefore was not possible to *602assess whether a taking had occurred as a result of a deprivation of all reasonable access). In short, the state is correct that the state’s lawful exercise of its regulatory power to limit or even to eliminate access to a public highway for regulatory purposes does not result in a regulatory taking of an abutting landowner’s right of access, unless the owner is deprived of all reasonable access to the property from the highway. See Curran, 151 Or App at 787.
But, when, as here, the state condemns the right of access, the analysis is quite different. Condemnation results in a taking of the easement for access. Burk, 200 Or at 245 (“A condemnation proceeding is an action in rem. It is not the taking of rights of designated persons, but the taking of the property itself” (Emphasis in original.)). In its complaint, the state alleged that it was acquiring defendant’s access, and the state does not contend on appeal that it is not acquiring an interest in defendant’s property. Under that circumstance, ORS 374.035(1) requires that the state pay compensation for the taking, and ORS 374.055 requires that defendant be permitted to put on evidence of “[a] 11 damages by reason of deprivation of right of access.” 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.
Our conclusion finds support in the Supreme Court’s opinion in Douglas County v. Briggs, 286 Or 151, 593 P2d 1115 (1979). In Briggs, the county took action to establish an existing county road as a throughway pursuant to ORS 374.420(1), which provides:
“The county court or board of county commissioners may acquire by purchase, agreement, donation or exercise of the power of eminent domain, fee title or any interest in real property, including easements of air, view, light and access, which is necessary for the construction of a throughway or the establishment of a section of an existing county road as a throughway.”
The court noted that the statute does not specifically provide that counties must compensate property owners whose rights of access to adjacent county roads are terminated. *603Briggs, 286 Or at 154. The court explained, however, that “the specified means of acquisition” described in the statute indicates that
“the property owner must agree to the termination of his rights of access unless the county acquires the right by condemnation. This, in turn, suggests that the rights of access cannot be terminated except by payment unless they are donated to the county by the property owner.”
Id. After reviewing the legislative history of ORS 374.420(1), the court concluded that “the legislature intended that property owners be compensated for the termination of their rights of access upon the conversion of an ordinary county road into a throughway.” Id. The court held that “ORS 374.420 requires the county to pay property owners for the loss of their rights of access when an established county road adjacent thereto is made into a throughway.” Id. at 156. The court further held that, under ORS 374.420, the question of whether the property owner is entitled to compensation for loss of adequate and reasonable access is a question of fact. Id. at 157.
I recognize that ORS 374.420 is not directly applicable here, because it relates to county roads rather than to state highways. Additionally, the legislative history of ORS 374.420 to which the court referred obviously does not bear on the legislature’s intent with respect to ORS 374.035(1). However, given the similarity of the statute’s text to ORS 374.035(1), the court’s opinion in Briggs supports the view that, if the Supreme Court had the opportunity to determine whether there is a right to just compensation for access rights condemned under ORS 374.035(1), the court would conclude that “the specified means of acquisition” described in the statute “suggests that the rights of access cannot be terminated except by payment” unless they are donated to the state by the property owner. Briggs, 286 Or at 154; see Davis v. Wasco IED, 286 Or 265, 272, 593 P2d 1152 (1979) (whenever possible, courts should attempt to construe statutes on the same subject as consistent and in harmony with one another).7
*604The state cites this court’s opinion in Hanson, 162 Or App at 41-44, in support of its position that an elimination of a right of access along a state highway does not result in a taking if there is other reasonable access on another public road. In my view, there are portions of that opinion, read in isolation, that can plausibly support either party’s position but that, when the case is understood in its entirety, the state’s reading is not persuasive. In Hanson, the state had purchased a portion of the property owners’ property in 1951 for the development of State Highway 20 (Highway 20) in Bend. The deed had expressly reserved the property owners’ right of access to Highway 20 at a designated location. In 1992, the state condemned a portion of the property owners’ property as part of a highway widening project. The property owners applied for a permit to construct an access road from their property to Highway 20 at the location specified in the 1951 deed, and the state denied the application, citing public safety concerns. Id. at 41. In the condemnation proceeding, the property owners filed a counterclaim for inverse condemnation, seeking just compensation for the decrease in the value of the remaining property because of the denial of access. The state asserted that it was not obligated to pay for the denial of access, because the property owners had another means of access. The trial court rejected the state’s contention and submitted the property owners’ claim for compensation to the jury.
On appeal, the state contended that the trial court had erred in denying its motion for a directed verdict on the property owners’ inverse condemnation counterclaim, contending that “the law does not require the state to compensate property owners for a loss of access to a public highway, particularly when other means of access remain available.” Id. at 43. The property owners responded that they did not merely claim that they had lost access to a public highway; they claimed that they lost access at a specific location reserved to them by deed:
“According to plaintiffs, it is irrelevant that they may have other access to the highway, because they owned a right to a particular route of access, which has been taken without compensation in violation of state and federal constitutions.”
*605Id. This court agreed with the property owners. In affirming the trial court’s decision to allow the inverse condemnation counterclaim to go to the jury, we explained:
“In this case, plaintiffs’ predecessors in interest conveyed land to the state, subject to the reservation of an easement of access to Highway 20 at a location specifically described in the deed. Although nonpossessory, an easement is an interest in land. Bunnell v. Bernau, 125 Or App 440, 442, 865 P2d 473 (1993). When it is taken by government action, compensation must be paid. Thornburg v. Port of Portland, 233 Or 178, 185, 376 P2d 100 (1962). A‘taking’ may occur either by outright condemnation or by governmental regulation of use that has the effect of rendering an owner’s property valueless. See, e.g., Boise Cascade Corp. v. Board of Forestry (S42159), 325 Or 185, 935 P2d 411 (1997); Cope v. City of Cannon Beach, 317 Or 339, 855 P2d 1083 (1993). In this case, there is no dispute that the effect of the state’s denial of plaintiffs’ application for a permit to use their easement effectively renders the easement valueless. It necessarily follows that the state has taken the easement, a property right, and that the state and federal constitutions require that the state must pay compensation in consequence.”
Id. at 43-44. Notably, and contrary to the implication of Judge Sercombe’s concurrence 265 Or App at 587 (Sercombe, J., concurring), Hanson is factually distinguishable. The plaintiffs’ property in Hanson did abut the highway; their predecessors had deeded to the state the property adjacent to the highway, and the plaintiffs held only an express easement for access. The opinion related to an inverse condemnation claim resulting from a denial of the permit to use the easement. This court concluded that the denial of the permit rendered the easement valueless, resulting in a regulatory taking.
The state cites a different portion of Hanson that it asserts supports its position:
“The state insists that, under [Schrunk], it is entitled to restrict access to a public highway without compensation in the interests of public safety. The statement is true as far as it goes. At common law, any property owner has a right of access to public thoroughfares. [Burk, 200 Or at 228]. But the right of access is specific to no particular location *606and, thus, is subject to regulation by the state without compensation as long as some reasonable access remains available. Thus, the court was careful to hold in [Schrunk] 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.’ [Schrunk], 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.
“But that is not what happened in this case. Plaintiffs reserved not a general common-law right of access, but an easement of access to a specific highway at a specific location. When the state denied them access at that location, there was a taking of precisely — and entirely — what had been reserved in the deed.”
162 Or App at 44 (emphasis added). In the state’s view, the emphasized text supports its position that a condemnation action seeking to acquire a common-law right of access such as defendant’s along a particular abutting street is not compensable if access is available from other abutting streets, because defendant’s right of access is general and not specific to any location. But, in making that statement, we were addressing only the state’s right to regulate the common-law right of “any property owner” to access public roads in the interests of public safety. We did not purport to address the question here raised about an abutting landowner’s right to just compensation when the state seeks to acquire the landowner’s abutter’s right of direct access. (That is a distinction that the concurring opinions do not appreciate.) Nor did we hold that when, as here, the state seeks to acquire an abutter’s right of direct access, the property owner is not entitled to present evidence of damages resulting from the taking.
Finally, contrary to the state’s contention, the Supreme Court’s opinion in Highway Com. v. Central Paving Co., 240 Or 71, 399 P2d 1019 (1965), is not helpful to its position. In that case, the defendants owned a sand and gravel business that did not abut the highway but that had indirect access to the highway by means of a graded crossing over a railroad right-of-way owned by Southern Pacific Railroad. The state sought to condemn a portion of the defendants’ land *607for construction of a frontage road in connection with the widening, improvement, and maintenance of the highway as a throughway. Id. at 72. Citing ORS 374.035, the defendants sought to introduce and the trial court admitted evidence of the value of the condemned property that included consideration of “circuity of travel” resulting from the defendants’ loss of what the defendants characterized as “direct” access to the highway over the railroad grade. Id. at 73. The trial court refused to give the state’s requested instruction that “nothing can be awarded * * * on account of inconvenience caused by circuity of travel.” The trial court also gave an instruction, to which the state excepted, that permitted the jury to consider the interference with the defendants’ access in determining the damage, if any, to the property not taken. Id. at 73-74.
On appeal, the Supreme Court reversed the trial court. The Supreme Court rejected the defendants’ contention that the case was controlled by ORS 374.035, explaining that the defendants did not have an interest in real property that was subject to that statute. Contrary to the state’s argument here, the court did not base its reasoning on the conclusion that an abutter’s right of access is not an interest in real property for which compensation must be paid. Rather, the court concluded that the defendants in that case did not have an abutter’s right of access to the highway because their property did not abut the highway. Id. The court explained that, although the construction of the throughway created an impediment in travelling between the defendants’ land and the new highway, that inconvenience was the same kind of inconvenience suffered by the general public and was not a deprivation of an interest in land. Id. at 74-75. Unlike in this case, the property owners in Central Paving had no interest in property that was subject to ORS 374.035(1); thus, that case has no bearing on that statute’s operation when the state seeks to acquire such an interest.
Here, it is not disputed that the state was entitled to eliminate defendant’s driveways in the exercise of its regulatory authority over public highways. But this court need not consider whether the elimination of both driveways along Highway 99W constituted a “regulatory taking” for *608which defendant would be entitled to compensation. That question is not before us, because defendant did not challenge ODOT’s administrative closure of its access.8 However, because the state sought also to acquire defendant’s right of access through eminent domain, defendant is entitled to establish just compensation for that taking.
In his concurring opinion, Judge Armstrong acknowledges that defendant has an abutter’s right of direct access to the highway and that the state’s removal of the access can result in a taking under Article I, section 18, of the Oregon Constitution, if the state’s use is for a purpose other than a road purpose. But, in Judge Armstrong’s view, any modification of a road for road purposes that denies a landowner’s access does not give rise to a compensable taking. In so concluding, Judge Armstrong discounts as “dictum” the Supreme Court rationale in Burk that an abutter’s right of access to a conventional Highway “can be divested only by condemnation of the easement appurtenant to the abutting property.” 200 Or at 231. Judge Armstrong explains that the court’s conclusion in Burk cannot be reconciled with the court’s analysis in more recent cases in the context of regulations that affect road access. See, e.g., Schrunk, 242 Or at 73 (holding in an inverse condemnation case that the abutting landowner’s right of direct access was subservient to the City of Portland’s proper exercise of its governmental powers for purposes of public safety and convenience, and that the elimination of access from the landowner’s property to the affected street did not constitute a taking). If, Judge Armstrong’s concurrence reasons, a government’s regulation of land does not result in a taking unless it leaves the owner with no economically viable use of the land, see, e.g., Coast Range Conifers v. Board of Forestry, 339 Or 136, 146-51, 117 P3d 990 (2005), then, necessarily, absent such a complete loss in economic value, the state’s condemnation of an abutter’s right of access cannot constitute a taking. Respectfully, Judge Armstrong’s attempted reconciliation of Burk and Schrunk cannot be squared with a holistic view of the case *609law, which shows that there is a difference between eminent domain and regulation. It also cannot be squared with the Supreme Court’s holding in Briggs, 286 Or at 154-57, in which the court construed ORS 374.420, a statute similar to ORS 374.035, on which the state relies in this case as the source of its authority to condemn defendant’s right of direct access, and in which the court held that the county’s authority to convert an existing road into a limited access road was conditioned on the county paying the abutting landowner for loss of access. Because I conclude that the state is similarly required to compensate defendant under ORS 374.035 and to permit defendant to introduce evidence of damages “by reason of deprivation of right of access” under ORS 374.055, I would not reach the conclusion that Judge Armstrong reaches in his concurring opinion that no compensation is required under the Oregon Constitution.
I note, finally, that Judge Armstrong supports his conclusion with an argument that the state has not made for itself: that the state’s regulatory closure of direct access from defendant’s property by elimination of curb cuts means that defendant’s property does not have a right of direct access and therefore suffered no loss in value due to the condemnation of the right of access.
In his concurring opinion, Judge Sercombe shares his view that defendant does not have and never had a common law right of direct access to Highway 99W that could be subject to compensation; rather, he asserts, the only property interest in street access held by an abutter at common law is a general, unfixed right to access the street, either directly from frontage of the property along the street or indirectly from a private or public approach that borders the property, and, unless a government takes that entire interest — both direct and indirect access — no compensation is owned under Article I, section 18. As I have explained in this dissenting opinion, I would resolve this case under ORS 374.035 and therefore would not reach the constitutional question. But I nonetheless believe that Judge Sercombe’s position is contradicted by the cases discussed herein.
Finally, Judge Sercombe characterizes my position to be that defendant is entitled to compensation for the loss *610of its right of access at the particular locations of the driveways, 265 Or App at 588 (Sercombe, J., concurring), but that is not my view. My position is only that, in this eminent domain proceeding for the acquisition of defendant’s abutter’s right of direct access to Highway 99W, defendant is entitled to establish just compensation for that taking. It may be that, because the state has the authority to regulate access to a public highway and has done so in this case, defendant would not ultimately be able to prove that it has been damaged by the state’s acquisition of its common-law abutter’s right of access. But that is a matter of proof. Contrary to the state’s contention in its motion in limine, and the views expressed in both concurring opinions, the state’s acquisition of defendant’s abutter’s right of access through eminent domain did result in a taking for which defendant is entitled to put on evidence of damages.
As the court said in Briggs, the factors for determining just compensation for a taking of access include “the highest and best use of particular property and whether its access to a public road for such use is adequate and reasonable or has been impaired.” 286 Or at 157; see also State Dept. of Transportation v. Schoppert, 82 Or App 311, 314, 728 P2d 80 (1986) (instruction correctly advised jury that it was to consider the nature of the landowner’s remaining access in assessing damages). I would conclude that the trial court erred in excluding evidence of the diminished value of defendant’s property as a result of the state’s acquisition of defendant’s direct right of access to Highway 99W and that the case should be remanded for further proceedings.
Accordingly, I respectfully dissent.
Haselton, C. J., Nakamoto, J., Egan, J., Tookey, J., and Schuman, S. J., join in this dissent.*611APPENDIX
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The trial court never ruled on the state’s second motion in limine.
ODOT filed a cross-appeal but withdrew its cross-appeal in its answering brief.
However, that common-law right applies only to abutters of public highways that were constructed before May 12, 1951. ORS 374.405 provides:
“No rights in or to any state highway, including what is known as right of access, shall accrue to any real property abutting upon any portion of any state highway constructed, relocated or reconstructed after May 12, 1951, upon right of way, no part of the width of which was acquired prior to May 12,1951, for public use as a highway, by reason of the real property abutting upon the state highway.”
The state’s second motion in limine sought to exclude evidence of damages resulting from the unappealed administrative closure of defendant’s driveways. The trial court never ruled on the state’s second motion. Nor did the state amend its pleadings to rely on the administrative closure or defendant’s failure to challenge it.
ORS 374.010 defines a “throughway” as
“a highway or street especially designed for through traffic, over, from or to which owners or occupants of abutting land or other persons have no easement of access or only a limited easement of access, light, air or view, by reason of the fact that their property abuts upon the throughway or for any other reason.”
The state alleged in its complaint and there is no dispute that the section of highway involved in this case is to be improved and maintained as a “throughway.”
In his concurrence, Judge Armstrong acknowledges that discussion in Burk, but describes it as dicta which he says the court subsequently disavowed in its opinion in Douglas County v. Briggs, 286 Or 151, 156-57, 593 P2d 1115 (1979). 265 Or App at 581 (Armstrong, J., concurring). Although I agree with Judge Armstrong that the court’s construction of OCLA sections 100-16 (when a state seeks to convert a conventional highway into a nonaccess highway by condemning only an easement of access, the state must pay compensation for the taking) in Burk was dicta, it was persuasive dicta that I would choose to follow. See State v. Brewer, 260 Or App 607, 613, 320 P3d 620, rev den, 335 Or 380 (2014) (following persuasive Supreme Court dicta). Further, and contrary to Judge Armstrong’s suggestion, 265 Or App at 582 (Armstrong, J., concurring) the dicta from Burk on which I rely did not depend on constitutional principles. Rather, the court’s discussion was in the context of its interpretation of OCLA sections 100-16, the predecessor statute to ORS 374.035(1), which authorized the State Highway Department to bring an action to acquire by condemnation an owner’s right of access. And, contrary to Judge Armstrong’s argument, the court, in its subsequent opinion in Briggs, did not disavow that discussion in Burk: It did not even cite the case. The court merely took no position on whether Article I, section 18, *601of the Oregon Constitution would require payment when “access is terminated,” reasoning that the statute it was interpreting, ORS 374.420(1), provided sufficient, independent ground on which to base the conclusion that a property owner must be compensated for a taking of access when an adjacent road is made into a throughway. Briggs, 286 Or at 156. That conclusion is consistent with the dicta that I have cited from Burk and, as discussed later in this dissenting opinion, also supports my interpretation of ORS 374.035(1).
Judge Armstrong would resolve this case on constitutional principles, see 265 Or App at 582 (Armstrong, J., concurring).
Nor does the state argue, as asserted by Judge Armstrong, 265 Or App at 582-83 (Armstrong, J., concurring), that no compensation is due because defendant has no right of access, it having been previously terminated by regulatory action.