(dissenting).
The opinion in this case, to my mind, entirely disregards prior decisions by this court which seem to me to be controlling. I refer to Bennett v. Nations, 49 N.M. 389, 164 P.2d 1019, and Board of County Comm’rs of Lincoln County v. Harris, 69 N.M. 315, 366 P.2d 710, decided within the year.
In addition, while assertedly following the “better” rule and the “weight of the more recent decisions,” to my mind the majority opinion does neither of these things as I shall undertake to demonstrate.
The factual situation in Bennett was very similar to the one here present. The road past plaintiff’s property was not changed. However, defendant undertook to obstruct it by building a fence across the road a short distance south of plaintiff’s house. Plaintiff had used the road continuously in traveling to and from his farm and the public likewise made use of the road. The court points out that in addition to the inconvenience suffered by the public generally through blocking the road, the plaintiff was especially inconvenienced and injured through being denied passage from home to farm except by use of a much longer, unimproved and dangerous way requiring passage over private lands belonging to others. Plaintiff sought an injunction against defendant maintaining the fence, and for damages suffered. The court found the road was a public road; that defendant had wrongfully obstructed it; that because the obstruction blocked passage from plaintiff’s home to her farm and back, she suffered an injury additional to that suffered by the public generally. That to be entitled to relief the injury must have been different from that suffered by the general public is clear. The rule is set forth in Bennett in the following approved quote from Young v. Rothrock, 121 Iowa 588, 96 N.W. 1105, 1107:
“The only other point involved is the right of plaintiff to enjoin the nuisance. It is said that he has no other interest than that of the general public, and that for that reason he cannot maintain the action. It is admitted, of course, that plaintiff must show he suffers some special damage distinct from that of the general public. The fact, however, that others sustain like damages is not controlling. The test is, does plaintiff suffer damage distinct from that of the general public? Park v. [Chicago & S. W.] R. R. Co., 43 Iowa 636. If, then, plaintiff has shown that the street which was obstructed led directly to his premises, and that the obstruction interfered with his access thereto, this is a sufficient showing of special damages to authorize him to maintain the suit. There is no difficulty with the rule, although its application is not always easy. Plaintiff has shown that, if deprived of the use of First street, he is compelled to go several blocks out of his way to reach the premises owned by him, which abut on the street, and are in the same block as defendants’ icehouse and that First street gives him the only reasonable access to his property. This is a sufficient basis for his action. Hill v. Hoffman (Tenn.Ch.App.) 58 S.W. 929; Callanan v. Gilman, supra; [107 N.Y. 360, 14 N.E. 264, 1 Am.St.Rep. 831]; Dairy v. [Iowa Cent.] R. R. Co., 113 Iowa [716], 719, 84 N.W. 688.”
I submit that if the damage to the plaintiff in Bennett was special and different from that suffered by the public generally, the same is true here. That the damage was done by a private citizen in that case whereas here it is done by a public body does not alter this fact. To compare the situation here with that present in Board of County Comm’rs v. Slaughter, 49 N.M. 141, 158 P.2d 859, is, in my opinion, entirely unreasonable and illogical. In Slaughter the existing highway was left unchanged in any manner whatsoever, whereas here, the highway is being totally blocked in one direction. I submit that the controlling rationale is that found in Bennett and not in Slaughter. Likewise, Bennett explains in clear and unambiguous terms how a situation such as that here present fits into and conforms with the holding in Mandell v. Board of Comm’rs of Bernalillo County, 44 N.M. 109, 99 P.2d 108.
I cannot understand the majority’s statement that the "rule where an obstruction occurs or a street is closed in a municipality” is not here involved, nor the statement that the injury is to the right to travel upon the highway which applies to the public generally. Bennett did not involve blocking of a city street, and it was there held that the damage to the property owner was different from that suffered by the public generally. Only if a different result follows from the fact that here the action is by public authority, whereas in Bennett it was by a private individual, can the total disregard of Bennett be justified. This brings us to the issue of whether or •not the claim that the injury is non-compensable because done pursuant to the police power can be supported.
Here, once again, the majority chooses to totally ignore a decision of this court, viz., Board of County Comm’rs of Lincoln County v. Harris, supra. In that case, while refusing to announce a rule to be applied in every case, we quoted with approval from Rose v. State of California, 19 Cal.2d 713, 123 P.2d 505, to the effect that regulation of traffic, or actions of an emergency nature necessary to protect life or property, can be supported as being within the police power of the state, and where property is damaged thereby the public is not required to pay compensation. An annotation generally on this subject may be found in 73 A.L.R.2d 689. Even in the area of regulation it will be seen from a reading of the cases that reasonableness in the circumstances is the controlling factor in determining if the regulation will be upheld under the police power and compensation denied. Iowa State Highway Commission v. Smith, 248 Iowa 869, 82 N.W.2d 755, 73 A.L.R.2d 680, supports .this conclusion,
I cannot find any reasonable distinction between interfering with access to a piece of property by changing the grade, presumptively to accomplish a better and safer highway, as was true in Harris, and in interfering with free and convenient access by placing a barricade between the street on which the property fronts and the highway. At least, as I view the situation here present, the question is one of reasonableness, which is a question of fact, not of law, and is to be determined in each case on the particular facts of the particular situation. Iowa State Highway Commission v. Smith, supra. If, under the facts here, the barrier is not deemed to materially interfere with appellant’s free and convenient access, or to substantially impair the value of his property, he is not entitled to compensation. However, for substantial impairment of access or damage to his property values, he should be paid.
I pass now to the question of whether the proposed opinion sets forth the better rule or represents the weight of the more recent decisions.
That the general weight of authority is contrary to the position asserted by appellee is admitted in its brief.
Reference is made by the majority to Bacich v. Board of Control, 23 Cal.2d 343, 144 P.2d 818, with the implication that it was a hard case and, consequently, resulted in bad law, and attention is called to the fact that there were three opinions, including a dissent. The majority here, in their opinion, distinguish Bacich because it is not concerned with the rule as to obstruction beyond the next intersecting street, nor in rural areas. Though true, as already pointed out in my discussion of the New Mexico cases, I do not see why That there should be no difference is asserted in Lewis, Eminent Domain, § 205, and this conclusion is adopted in Department of Highways v. Jackson (Ky.1957), 302 S.W.2d 373, cited by the majority. I think it is a mistake to indicate otherwise. a different rule is indicated.
Also, since the dissent of Justice Traynor in Bacich, supra, was based on his view that property owners have no easement of access to the streets, his position is contrary to the holding of the majority in our case to the effect that right of ingress and egress is a property right. Although no authority is cited, I think the statement is supported by most cases. The following authorities could be cited among literally hundreds of others: 38 Neb.L.R. 407, 411; 14 Ala.L.R. 160, 165; Blount County v. McPherson, 268 Ala. 133, 105 So.2d 117. It is implicit, it seems to me, in the holding in Board of County Comm’rs of Lincoln County v. Harris, supra. See also, 2 Nichols, Eminent Domain (3rd Ed.) § 6.-4442.
Lewis in his treatise on Eminent Domain (3rd Ed.) in § 191 recognizes there are states which deny compensation where the street is left open in front of the complaining party’s property even though closed down the street, but states the better view, in his opinion, is that “ * * * the private right of access is the right, not only to go from one’s property to the street and from the street to the property, but also to use the street in either direction as an outlet to the general system of highways.” (§ 191, p. 350). Again, in § 202, the contrary Massachusetts rule is discussed, followed by pointing out that the Pennsylvania and Illinois cases are to the contrary, and he thinks them to be correct. See also, 2 Nichols, Eminent Domain, § 6.-4443[3], 49 A.L.R. 330, 351.
To like effect is the note in 93 A.L.R. 639, 642. At page 643-644, it is pointed out that New York, Chicago & St. Louis R. Co. v. Bucsi, 128 Ohio St. 134, 190 N.E. 562, 93 A.L.R. 632, cited by the majority, “does not seem in accord with the weight of authority * * The other two Ohio cases cited in the opinion merely follow the doctrine of the earlier case. In State ex rel. Merritt v. Linzell, 163 Ohio St. 97, 126 N.E.2d 53, the street fronting on the owner’s property remained unchanged and was not blocked. In New Way Family Laundry, Inc. v. City of Toledo, 171 Ohio St. 242, 168 N.E.2d 885, it would appear that a medial divider was placed in the street so that circuity of travel of one mile in one direction and two miles in another resulted. This is, in effect, the same doctrine as is advanced in the Jones Beach Blvd. Estate, Inc. v. Moses, 268 N.Y. 362, 197 N.E. 313, 100 A.L.R. 487. However, Jones Beach Blvd. Estate, Inc. v. Moses makes it clear that recovery was denied because the ordinance providing for the medial divider and resulting in the circuitous travel was deemed a reasonable traffic regulation with no substantial injury shown.
In the instant case, I cannot see where police or traffic regulations are involved. They certainly are not under the definition used in Board of County Comm’rs of Lincoln County v. Harris, supra. Accordingly, I do not think we should enter into the realm of dictum as to what we would do in a medial divider case such as the Jones Beach Blvd. Estate case. It is sufficient for the purposes of this case to merely decide the cul-de-sac issue in connection with which I see no reason for not following what has generally been called the majority rule, 49 A.L.R. 351, and the better rule, Lewis, Eminent Domain, § 191.
It seems to me that the legislature of 1957, by its adoption of Chapter 234 dealing with controlled-access highways and providing in § 5 (§ 55-10-5, N.M.S.A.1953) for acquiring the same by purchase or condemnation, lends support to the idea that this is not a police power regulation but a damage by cutting off access to the old Highway 85, which should be paid for. This argument is well set forth in Smith v. State Highway Commission, 185 Kan. 445, 457, 346 P.2d 259.
Many of the cases state that the problem is one of application of a rule generally agreed upon. Possibly, the difficulty arises from the manner of stating the rule. All the cases seem to agree that the owner of property has an easement in the street for reasonably convenient access to his land, or reasonable ingress and egress. However, what is the ingress to or the egress from in terms of the road to or from which a property owner has a right? Is it just to get on the street and then be able to get to a destination regardless of the difficulties intervening? Or, is it a right to get to the general system of roads and highways without unreasonable interference? See, 27 Wash.L.R. Ill, at 119.
The court in Mandell v. Board of Comm’rs of Bernalillo County, supra, where a cul-de-sac situation arose, recognized in dicta a different rule from that which it applied under the facts of that case. The decision there was undoubtedly correct, under the particular facts. However, here, where the general system of roads was previously accessible directly from the property in either direction, and now can only be reached by traveling in one direction, an entirely different situation requiring a different result would seem to be presented.
The law on this subject is well summarized, to my way of thinking, in the article on “The Limited-Access Highway” by Owen Clarke, appearing in 27 Wash. L.R. 111, 121, from which the following is quoted:
“The uncertainty and confusion in the law is most apparent in the cul-desac cases where construction of a freeway blocks up streets 'which formerly had intersected the highway but which now terminate in a dead end. Some jurisdictions have declared that the creation of a cul-de-sac is compensable, although access still exists in the opposite direction to an intersecting street. Many other courts, however, have steadfastly refused to award compensation under such circumstances, maintaining that injury, if any, differs only in degree but not in kind from the damage suffered by the public.
“Some courts recognize the damage of one owner as compensable while at the same time refusing to make good the injuries of another owner a block further removed from the obstruction. Diminution in value of the properties involved in both instances is occasioned by the same public act, and may be of like magnitude. The mere inconvenience of traveling any additional distance necessitated by the obstructed street is not a compelling distinction, for it is difficult to justify the denial of compensation to one whose property is located directly beyond the first intersecting street while permitting recovery to the abutter owning the lot on the corner of the block in which the culde-sac exists. The ultimate test in culde-sac cases, as in all other cases involving access rights, should be whether there has been any substantial impairment of ingress and egress to the premises, considering its use and environment. Tliat a property abuts upon a street which is closed at one end should not, per se, entitle the owner to damages, for, in fact, he may not have been damaged.” (Emphasis supplied.)
Of course, appellant is not entitled to be compensated for loss of business suffered as a consequence of changes in traffic patterns resulting from building the new highway, Board of County Comm’rs v. Slaughter, supra. However, in that case, it does not appear that if the old road had been blocked by a barrier where it met the new road (which is the fact here) damages, if substantial, because of interference with access as distinguished from damages for loss of business, would not have been allowed. It seems to me that here the case should be reversed and remanded so that damages can be determined, with instructions to the trial court that loss of business is not an element to be considered. I feel it is wrong to hold that the rule of damnum absque injuria is applicable.
For the reasons stated, I would reverse the decision of the trial court, and respectfully dissent from the opinion holding otherwise.