concurring: I concur in the result of the decision herein for the reasons hereafter assigned.
When the facts in Riddle v. State Highway Commission, 184 Kan. 603, 339 P. 2d 301, are taken into consideration, it is impossible for me to breathe life into it by recognizing it as an authority. The opinion there written for the court does not represent the opinion of a majority of the members of the court. The Riddle case was tried to the court on the basis of a condemnation action which recited in the petition that rights of access were being taken by condemnation pursuant to G. S. 1957 Supp., 68-1901 through 68-1906, and G. S. 1957 Supp., 68-413.
In the instant case the condemnation petition was filed prior to Chapter 68, Article 19 of the Laws of 1953. (68-1901 through 68-1906, supra.) The petition itself was artfully drawn on behalf of the State Highway Commission and could not be construed to say that the State Highway Commission was attempting to acquire rights of access by eminent domain, but that it was establishing the new highway as a controlled access facility, reciting in detail the manner in which the new highway would be constructed and the access curtailed, in the exercise of the state police power.
These facts were all set forth in the condemnation petition and fully informed the appraisers, and the jury on appeal, of the exact nature of the condemnation proceedings and of the use to which the premises would be put.
It must be conceded the landowner in the instant case did not have access to a highway which never existed. On the facts, the landowner s routes of travel from his premises over existing township and county roads and existing state highways were not curtailed in any way by construction of the new controlled access highway. Thus, the issue here presented is very narrowly limited by the facts.
Under G. S. 1961 Supp., 68-413 (enacted in 1951), the State Highway Commission in the acquisition of a right of way for state highway purposes by condemnation is limited, except in certain circumstances, to an easement. Conceivably, the landowner has a limited right of access to such property rights in the condemned land as are not taken from him — to the oil and gas, for example.
The basis of the landowner’s complaint herein is the right of access by motor vehicles from his remaining tract of land to the new highway facility. He assumes that rights of access attached after the condemnation. By this injunction action the landowner ulti*630mately seeks to recover for the loss of the enhanced value to his remaining tract by reason of the condemnation designed to establish the new highway facility, where none previously existed, after having recovered full damages in the condemnation proceedings which fully informed him and all concerned prior to the taking that no rights of access to such highway would ever attach by reason of the condemnation. This he cannot do. He can only recover the value of the land taken based on its most advantageous use on the date of the taking, and damages to the remaining tract based upon the fair market value of the remaining tract immediately before the talcing diminished by the fair market value of such tract immediately after the taking.
Theoretically, this means the fair market value for which the remaining tract of land could be sold immediately prior to the taking, absent knowledge on the part of the purchaser that there was a condemnation pending and absent knowledge of the use to which the property sought in condemnation may be put, diminished by the fair market value at which the property could he sold immediately after the talcing, with full knowledge of the condemnation and the use to which the property condemned would be put.
If the landowner has lost any rights for which recovery is sought by this action, the value of such rights is at best nominal. In my opinion it is better that the law be settled on the narrow issue here confronting the court, than to foster actions for injunctions involving only nominal damages.