(dissenting).
I disagree with the opinion. My reasons for doing so are explained in my dissents in State v. Danfelser, N.M., 384 P.2d 241, and in State v. Silva, N.M., 378 P.2d 595.
I do not propose to repeat what is there said. The problems, though factually different, are basically the same, and my reasons for disagreement there force me likewise to take issue here.
I would, however, make one or two additional points. I do not agree that appellees’ “real claim to damage is the denial of direct and unrestricted access by the public from the highway to their property,” nor do I agree that “the real complaint is loss of business because the travelling public cannot reach their business establishments as readily as from the old conventional 66.” Likewise, I take issue with the statement that the facts here present a reasonable traffic regulation situation under the police power of the state, or that there is only a diversion of traffic which is not compensable. Also, I would mention that the method of distinguishing Board of County Commissioners v. Harris, 69 N.M. 315, 366 P.2d 710, is most unconvincing and unsatisfactory.
However, aside from the foregoing points of disagreement, my real trouble with the opinion arises through the court’s determination as a matter of law that through the frontage road appellees have “reasonable access to the main system of public roads.” As I stated in my dissent in Danfelser, supra, the question of whether or not appellees’ access has been made materially more difficult or inconvenient is one that should be answered by the fact finder. If such difficulty or inconvenience is found, the amount of damages should then be determined. In other words, if the interference with access resulting from being left off the main highway and relegated to service roads is of such material nature and made so difficult or inconvenient as to adversely affect to a substantial degree the value of the property for its highest and best use, then the owner is entitled to be compensated therefor.
The court instructed the jury to determine if the access to the property was “reasonable, free and convenient,” and if it was, appellees were not entitled to compensation for limitation of access. In advising the jury that appellees could not recover if their access was “reasonable and convenient” after the changes contemplated by the proposed improvement, but that they could recover if it was not, the court in effect instructed that recovery should only be allowed if there was a material alteration so as to make the access to the property substantially less reasonable and convenient.
This accords generally with what seems to me to be the correct and proper rule. The jury having decided the issue upon substantial evidence, the result will not be disturbed in this court. Adams v. Cox, 55 N. M. 444, 234 P.2d 1043; Reid v. Brown, 56 N.M. 65, 240 P.2d 213.
The trial court, in its instructions, advised the jury that appellees were entitled to compensation only if they had been denied “reasonable and convenient” access to and from the highway, considering all of the uses to which the property was adapted and available. The complaint concerning the instruction was that it allowed the jury to give compensation for “circuity of travel, inconvenience, loss of business or profits, diversion of traffic and view.” However, in the instructions, the jury were advised “that mere circuity of travel and inconvenience is not compensable,” and also that the fact an abutting landowner “may be required to travel an additional distance” because of construction of a divided highway, does not result in legal damages. Another instruction advised the jury that “loss of business” was not a proper element of damages.
As we have many times said, jury instructions must be considered in their entirety and if, when read all together, they correctly state the law, that is all that is required. McFatridge v. Harlem Globe Trotters, 69 N.M. 271, 365 P.2d 918. The instructions are not defective, but conform to what is a correct application of the law.
I would also add a word of disagreement to the holding of the majority in connection with the claim that appellees were damaged because of interference with their easement of view. See Klaber v. Lakenan, 8 Cir., 64 F.2d 86, 90 A.L.R. 783, and note commencing 793; Murphy, Inc. v. Town of Westport, 131 Conn. 292, 40 A.2d 177, 156 A.L.R. 568; Kelbro, Inc. v. Myrick, 113 Vt. 64, 30 A.2d 527; People v. Ricciardi, 23 Cal.2d 390, 144 P.2d 799; 30 Georgetown L.J. 723.
In my view, there was no reversible error in the trial and the judgment should be affirmed. I dissent from the contrary conclusion reached by the majority.