dissenting in part: In my opinion this case has not been correctly decided and I must respectfully dissent from paragraphs 6 and 7 of’ the syllabus and corresponding portions of the opinion.
In my opinion the expert testimony of the plaintiffs should have been stricken since it was improper to prove damages to the land remaining. At most, that testimony established consequential injury to plaintiffs’ property not compensable in a condemnation proceeding. Likewise, instruction No. 10 constituted reversible error for reasons hereafter stated.
The effect of the majority opinion is that although the principal elements of damage involved in this appeal (lack of or denial of access to the new highway; loss of business or loss of profits, and diversion of traffic from the old to the new highway) are not compensable, nevertheless, because plaintiffs are abutting owners without direct access, such elements may be considered and are a circumstance that enters into the question of the amount of damage to the land remaining of which the jury should be informed and the question left to their ultimate decision. Thus, plaintiffs are permitted to recover indirectly that which they cannot recover directly. In other words, the majority opinion denies, but at the same time permits, these damages. This holding in effect makes the state an insurer of a continued flow of traffic upon the highway past the plaintiffs’ door, and, if in the interest of public safety and welfare, the highway is relocated and traffic diverted to a controlled access facility, a guarantor for all business losses suffered by plaintiffs as a result of the commission’s lawful action. It has never been so.
Stripped of its ramifications, this case simmers down to the plain hard facts that the principal damage claimed to the land remaining occurred solely as a consequence of the diversion of traffic from the old highway, and the denial of direct access to the new highway. The expert testimony was that because of those factors the *618commercial value of the land remaining has been rendered “almost completely worthless”; they made the remainder damage “total”; they were the “principal” remainder damage; they constituted “95 percent” of the remainder damage, and rendered the property not “worth anything as a motel.”
Plaintiffs’ motel and home were not disturbed in any respect by the condemnation except a portion of the back yard was taken. The motel faces the same highway it always faced; it has the same access it always had, and its patrons have the same approach from all directions they always had. The only difference is that traffic which formerly went in front of the motel will pass at the rear over the new highway, which, due to its controlled access facility, denies plaintiffs and their patrons direct access. Traffic is the lifeblood— the stock and trade, of a motel. Without it, it becomes like a melon severed from its vine — it withers and dies. But, old U. S. Highway 24 was established for the benefit of the traveling public, and only incidentally for the benefit of plaintiffs and others who engaged in business along its way. Those businesses were established with the knowledge that new highways might be constructed which would largely divert the flow of traffic from past their door. This was a risk they assumed when they established their business.
My colleagues agree it is universally held that had there been no taking of a portion of plaintiffs’ property the elements of damage they now claim would not be compensable. In other words, where a direct taking of some of a landowners’ property is not involved, he cannot recover consequential damages for the relocation of the highway entirely off of his property. Hence, had the new highway been relocated along the north line of plaintiffs’ property or north of that point, no damage could be allowed. However, the majority opinion justifies the items of damage upon the ground that since a part of plaintiffs’ property was appropriated for the right of way, no matter how small, they immediately become entitled to have these items of consequential damage presented to the jury in determining diminution in value of the land remaining. The holding is necessarily that even though other property owners along the old highway are injured in exactly the same manner as plaintiffs, the fact that their property was not needed for the new right of way prevents them from recovering damages they may all suffer. The conclusion is unsound, and the majority rule in the United States does not support it.
*619While the owner of land is to be given by way of compensation the fair market value of the land taken plus the diminution in value of that remaining before and after the taking (Hoy v. Kansas Turnpike Authority, 184 Kan. 70, 334 P. 2d 315), courts generally, if not universally, recognize and approve an exception to this rule that there are elements of damage for which no compensation will be given even though such elements may cause diminution in the value of the land remaining. The cases are nearly, if not entirely,, unanimous in their holding that the owner of land abutting on a highway has no property or other vested right in the continuation of the flow of traffic which passes his door so long as he is not deprived of ingress and egress to the highway so as to be compensable in an eminent domain proceeding (Board of County Com’rs v. Slaughter, 49 N. M. 141, 143, 158 P. 2d 859; State et al., v. Hoblitt et al., 87 Mont. 403, 288 Pac. 181; Hempstead County v. Huddleston, 182 Ark. 276, 31 S. W. 2d 300; Nelson et ux. v. State Highway Board, 110 Vt. 44, 1 A. 2d 689, 118 A. L. R. 915; Johnson’s Petition, 344 Pa. 5, 23 A. 2d 880; State of Arizona v. Carrow, 57 Ariz. 434, 114 P. 2d 896, 898; Walker v. State, 48 Wn. 2d 587, 295 P. 2d 328, 331; Rudolph Ramelli, Inc. v. City of New Orleans, 233 La. 291, 96 So. 2d 572 [suit for damages resulting from construction of a railroad overpass]; Johoda v. State Road Department (Florida, 1958), 106 So. 2d 870). I know of no better statement of the rule than that of Mr. Justice Rrewer in the early case of Heller v. A. T. & S. F. Rld. Co., 28 Kan. 625, wherein he said:
“. . . Where a party owns a lot which abuts on that portion of the street vacated so that access to the lot is shut off, it is clear that the lot-owner is directly injured, and may properly challenge the action. The closing up of access to the lot is the direct result of the vacating of the street, and he, by the loss of access to his lot, suffers an injury which is not common to the public; but in the case .at bar, access to plaintiff’s lots is in no manner interfered with. The full width of the street in front and on the side is free and undisturbed, and the only real complaint is, that by the vacating of the street away from her lots the course of travel is changed. But this is only an indirect result. There is nothing to prevent travel from coming by her lots if the travelers desire it. The way to the heart of the city by her lots is a little more remote than it was before, but still free passage is open to all who wish to pass thereby. No one is compelled to stay away. Access to the lots is the same that it was before, so that the injury is only the indirect result of the action complained of, and it is an injury which, if it exists at all, is sustained by all other lots along the street west of the parts vacated. Travel by those lots may be diminished, travel on streets south may be increased, and to that extent property on such southern streets may be benefited thereby. The same *620result would follow if some other avenue of approach to the city were specially improved. Public travel naturally seeks that which is the best route, but surely that thus the tendency of travel in front of her lots was diverted would give her no cause of action. The benefits which come arid go from the changing currents of travel are not matters in respect to which any individual has any vested right against the judgment of the public authorities. . . .” (1. c. 628, 629.) (Emphasis supplied.)
See, also, Highbarger v. Milford, 71 Kan. 331, 80 Pac. 633; Foster v. City of Topeka, 112 Kan. 253, 255, 210 Pac. 341; Ruff v. Shawnee County Comm’rs, 127 Kan. 188, 200, 201, 272 Pac. 189; Johnson’s Petition, supra; State, ex rel., v. Linzell, 163 O. S. 97, 104, 126 N. E. 2d 53; State Highway Commission v. Humphreys (Tex. Civ App.), 58 S. W. 2d 144, 145. In the Linzell case, supra, it was said:
“It is now an established doctrine in most jurisdictions that such an owner (abutting owner) has no right to the continuation or maintenance of the flow of traffic past his property. The diminution in the value of land occasioned by a public improvement that diverts the main flow of traffic from in front of one’s premises is noncompensable. (Cases cited.) The change in traffic flow in such a case is the result of the exercise of the police power or the incidental result of a lawful act, and is not the taking or damaging of a property right. (Cases cited.)” (1. c. 104.)
In Carazalla v. State, 269 Wis. 593, 70 N. W. 2d 208, the plaintiffs owned a dairy farm which abutted U. S. Highway 51. That highway was relocated as a controlled access facility and passed through the farm a short distance east of its prior location. The trial court refused an instruction that the jury disregard any evidence as to any damages resulting from inconvenience caused the owner or a prospective buyer as a result of the relocation. The supreme court of Wisconsin affirmed that ruling. However, upon a petition for rehearing, the supreme court reversed itself, vacated the mandate, and stated:
“. . . in our original opinion we failed to perceive that any damages to the remaining lands due to the exercise by the state of its police power in making the relocated highway a controlled-access highway are not recoverable. The reason for such lack of perception was that the institution of the condemnation proceedings and the designation of the relocated highway as a controlled-access highway were so interwoven that we considered the two to be an inseparable whole when actually they constituted two separate and distinct acts.
“If relocated U. S. Highway SI had not been designated as a controlledÍaccess highway, but instead that part thereof located upon the parcel taken from' the plaintiffs had been constructed on such a high embankment as to make it impracticable for passing traffic to reach plaintiffs’ remaining abutting lands from such highway, the rule announced in our former opinion would *621be applicable. Such rule, however, is not applicable to a situation where moving traffic would have suitable ingress to, and egress from, plaintiffs’ abutting lands from the relocated highway except for the fact that the state’s police power has been exercised to prohibit the same.” (1. c. 608c.) (Emphasis supplied. )
In Johnson’s Petition, supra, the supreme court of Pennsylvania considered the precise question here presented. There, the appellee owned land abutting State Highway Route No. 20 upon which was located his restaurant and beer parlor, dwelling house, and a garage. The highway was relocated upon the north end of the tract but the old highway remained open to public travel, which connected with the new highway east and west of appellee’s land. In fixing the difference in market value before and after the taking, all witnesses took into account diversion of traffic and allowed a considerable portion of their estimation of damage on that account. In denying a new trial, the trial court said, “that the diversion of traffic constituted a large part of the decreased value.” In reversing the case, the supreme court said:
“It is for the loss in market value, due to the taking, that the Commonwealth is responsible. The owner’s property rights were not invaded nor was there any legal injury to it by reason of the mere fact that the Commonwealth provided an additional road with the result that the public had the choice of two routes and the travelers might choose the new route in preference to the old one. The state owed no duty to the appellee to see that travel continued to pass by his door. The current of public travel is bound to shift as affected by innumerable conditions. ‘Benefits which come and go with changing curents of public travel are not matters in which any individual has any vested right against the judgment of those public officials whose duty it is to build and maintain these highways.’ . . .”
“To adopt the contention of the land owner as a general legal principle would lend to absurd results. Assume, for the sake of argument, that the state had taken only a few square feet from the northern tip of this land. Then under appellee’s theory he would have been entitled to have diversion of traffic considered in determining the market value after the taking. This illustration shows that the claim made here is not for damages due to the taking of the north corner of this land but for an ensuing result that was too remote to have relevance in fixing damages. The loss in traffic was directly due to changes in the connection at points remote from the land taken. The results were not peculiar to this land owner but were shared to a greater or less degree by all properties located on the old road. It followed as a result of the highway department’s determining that an additional route should be furnished for the accommodation of the public and the result is damnum absque injuria.” (1. c. 10, 11.)
*622In Board of County Com'rs v. Slaughter, supra, the same question was presented as in the instant appeal. Slaughter’s property abutted U. S. Highway 85 upon which was located a store, restaurant, residence, filling station and numerous tourist cabins. The highway was relocated through Slaughter’s property three-eighths of a mile from his improvements. Retween the improvements and the new highway was a mesa which made direct access with the new highway practically impossible. The contention was there made, as is made in the majority opinion, that because the highway was relocated upon Slaughter’s land and traffic was diverted from in front of his improvements and he was denied practical access, damages resulting from the diversion of traffic and the denial of access should be considered by the jury in determining damage to the land remaining. In denying that contention the court said:
“Unless we can say that public roads are built primarily for the benefit of the occasional landowner along the route, rather than for the necessity and convenience of the general public, it must be said that the landowner has no vested right in the current of public travel. Nelson v. State Highway Board, supra. And, it can make no difference, as we view it, that a small portion of appellee’s acreage may have been taken for the new right of way. The situation is no different from that where no portion of the land is taken, unless— which is not the case here — it may be said that the taking of some acreage from the whole, in some measure, and of itself, damaged the whole for the purpose for which it was reserved or used above and beyond the value to be allotted to the portion taken.
“The applicable rule as to damages for diversion of traffic is the same under one situation as another; we test the claimed vested right to the current of public travel by the same measure, whether twenty feet may have been taken off the back of an owner’s lot without damage to the front where the flow of traffic was formerly found, or whether the relocated highway is situated twenty feet further away so that it be not necessary to take any portion of the owner’s land. Obviously, the landowner’s claim must rest or fall upon a decision whether she has a vested right in the flow of public travel, which once came by her door, but for which now, for the convenience of the general public, a shorter and more convenient route has been opened and is being employed. We hold she has no such right.” (1. cl 148.)
The case of Jahoda v. State Road Department, supra, decided November 21, 1958, quotes from and adopts the dissenting opinion of Pike County v. Whittington (1955), 263 Ala. 47, 81 So. 2d 288 (cited in the majority opinion here) as the majority opinion of the supreme court of Florida, wherein it was said:
“Ordinarily no person has a vested right in maintenance of a public high*623way in any particular place and state owes no duty to any person to send public traffic past his door.”
“The majority opinion in the Whittington case, supra, cites as authority Alabama cases. Without attempting to analyze these cases, we think the dissenting opinion clearly sets forth the great majority rule in the United States and it is persuasive to us. Thus, we quote from the dissenting opinion in the Whitington case, supra.
“ ‘The following illustrates the result reached by the majority. A and B could be adjacent landowners, each fronting 200 feet on a state highway. A’s lot is 200 yards deep. B’s lot is only 198 yards deep. Each has a filling station and grocery store facing the highway and do a comparable business. The highway is relocated so as to pass 199 yards behind their places of business. It thus takes one yard of A’s property but takes none of B’s. A would be entitled to compensation because the flow of traffic on the old highway was taken away from him while his neighbor B would, under practically all the decisions in all tire states, be entitled to nothing. Pruett v. Las Vegas, Inc., 261 Ala. 557, 74 So. 2d 807. There is something about such a result which to me seems unfair and unjust. . . .” (106 So. 2d, p. 872.)
In McHale v. State, 94 N. Y. S. 2d 684 (cited in the majority opinion), it was held:
“Mere diversion of traffic alone regardless of fact that new road traverses a portion of claimant’s land will not support a judgment for consequential damages.
“Owner of land abutting on highway has no property or vested right in continuance of a certain amount of traffic over the highway so long as he is not deprived of ingress and egress.” (Syl. ¶¶ 7, 8.)
See, also, Nelson et ux. v. State Highway Board, supra; People v. Thomas, 108 C. 2d 832, 239 P. 2d 914; State v. Calkins, 50 Wn. 2d 716, 314 P. 2d 449, and 29 C. J. S., Eminent Domain, § 162, p. 1031.
While plaintiffs are entitled to be compensated for diminution of market value of the land remaining, it does not follow that the state is responsible for every result that may ensue when a highway is relocated as a controlled access facility (1 Elliott, Roads and Streets, §298, p. 359).
Here, the diversion of traffic resulting in injury to plaintiffs’ business was not due to the taking of their land, but was occasioned by the relocation of the new highway resulting in the public having a choice of two routes, and in all probability preferring the newer one. While it was necessary to acquire the right of way by condemnation, the taking did not divert the traffic, hence plaintiffs’ rights were not invaded. The diversion of traffic was an indirect consequence and too far removed from the taking to form the basis of a claim for legal injury. Had the new highway been relocated *624off plaintiffs’ land the same damage here in question would doubtless have occurred, but there would have been no taking. How, then, can it be asserted the damage here claimed resulted from the taking? To ask the question is to answer it.
It is well settled that mere circuity of travel to and from real property does not of itself result in legal impairment of the right of ingress and egress to and from such property, where any resulting interference is but an inconvenience shared in common with the general public and is necessary in the public interest to make travel safer and more efficient. Such damage is damnum absque injuria. (State, ex rel., v. Linzell, supra; Walker v. State, supra; Turner v. State Roads Comm., 213 Md. 428, 132 A. 2d 455 [construction of median strip in highway resulting in longer route for owners to gain access]; Jones Beach Boulevard Estate, Inc., v. Moses, 268 N. Y. 362, 197 N. E. 313; Christy v. C. B. & Q. R. R. Co., 240 Mo. App. 632, 212 S. W. 2d 476.) See, also, Ruthstrom v. Peterson, 72 Kan. 679, 83 Pac. 825; Anderson v. Cloud County, 83 Kan. 419, 111 Pac. 464; Borton v. Mangus, 93 Kan. 719, 145 Pac. 835; Smith v. Reno County Comm’rs, 121 Kan. 444, 446, 447, 247 Pac. 1046; and Bohan v. Sumner County Comm'rs, 131 Kan. 87, 289 Pac. 436. In Walker v. State, supra, it was said:
“. . . Circuity of route, resulting from an exercise of the police power, is an incidental result of a lawful act. It is not the taking or damaging of a property right. , . .” (1. c. 591.) (Emphasis supplied.)
With respect to business losses, the decided weight of judicial authority is that an abutting owner may not recover damages based upon loss of business or the loss of anticipated profits from the business in a condemnation proceeding (Bales v. Railroad Co., 92 Kan. 771, 141 Pac. 1009; State v. Stabb, 226 Ind. 319, 79 N. E. 2d 392; State v. Vella (Or. 1958), 323 P. 2d 941; Dusevich v. Wisconsin Power & Light Co., 260 Wis. 641, 51 N. W. 2d 732; Realty Corporation v. City of Norfolk, 199 Va. 716, 101 S. E. 2d 527; St. Louis Housing Authority v. Bainter (Mo. 1957), 297 S. W. 2d 529; 18 Am. Jur., Eminent Domain, §§ 259, 261; 29 C. J. S., Eminent Domain, § 162, pp. 1031-1033). This is especially true where such losses result from the diversion of traffic caused by the relocation or improvement of a highway (29 C. J. S., Eminent Domain, § 162, p. 1032)..
The testimony objected to was based upon the elements of diversion of traffic, lack or denial of direct access, circuity of travel, and loss of business profits, which are merely consequential and do *625not result from a “taking” of property compensable in a condemnation proceeding. As previously indicated, they occurred solely as a result of lawful action of the commission in changing the location of the highway and declaring it to be a controlled access facility under G. S. 1957 Supp. 68-1901, et seq. In my opinion the trial court erred in failing to sustain the commission s motion to strike that testimony.
I now refer to instruction No. 10 which reads:
“You are instructed that where, for the purpose of establishing, widening or improving a public highway, a strip of land is taken from a tract and the owner s right of access from a public highway is taken, the owner is entitled to compensation for injury to and depreciation, if any, of the remainder of the tract resulting from the appropriation of the land rights of access in question.” (Emphasis supplied.)
This instruction advised the jury that the right of access is a property right which could be considered if injury or depreciation resulted from the appropriation of that right. The instruction would have been proper had a right of access been taken, but was erroneously given because there was no “taking” of a right of access since such a right never in fact existed.
It is apparent that in preparing instruction No. 10 the district court followed the instruction given in the Simmons case since they are almost verbatim. That instruction reads:
“You are instructed that where, for the purpose of (establishing) widening and improving a public highway, a strip of land is taken from a tract and the owner’s right of access from a public highway also is taken, the owner is entitled to compensation to the extent of the value of the land taken, and to compensation for injury to and depreciation, if any, of the remainder of the tract resulting from the appropriation of the land and rights of access in question.” (Emphasis supplied.)
In the above quoted instruction the word “establishing” in parentheses was added in instruction No. 10 and the word “and” between the words “widening and improving” was changed to “or,” and the remaining portion emphasized was omitted, otherwise the two instructions are the same.
In the Simmons case, as the opinion indicates, an existing highway with existing rights of access was widened by the commission and converted into a controlled access facility. Rights of access in that case were taken, but, that is not the case here. Instruction No. 10 makes no reference to the controlled access character of the new highway which denied that right. Where an ordinary or con*626ventional highway is constructed there may be an intent to serve abutting owners, but where a new controlled access highway is established the intent is just the opposite, and a resolution establishing such a highway with full controlled access facilities gives adequate notice that no rights of access exist unless specifically granted (Schnider v. State of California, 38 C. 2d 439, 241 P. 2d 1, 43 A. L. R. 2d 1068; 3 Stanford Law Rev. 298, 300, 308). Had the new highway not been designated as a controlled access facility, it would have been proper in my judgment for the jury to consider the high embankment and the resulting impracticable access to plaintiffs’ land in determining diminution in value to the land remaining. Rut, nothing was taken from the plaintiffs and to allow damages to the land remaining based upon the jury’s consideration of a circumstance arising from a nonexistent right would amount to a gift rather than payment for an injury or destruction of a right.
The views expressed herein are not inconsistent with Franks v. State Highway Commission, 182 Kan. 131, 319 P. 2d 535, since in that case the highway had been laid out and the right of way secured by condemnation long prior to commission action under G. S. 1957 Supp. 68-1901, et seq., designating it to be a controlled access facility (29 C. J. S., Eminent Domain, § 105, p. 911; 20 C. J., Eminent Domain, § 131, pp. 656, 657, note 49; United States v. Certain Lands, 112 F, 622). Here, commission action designating the new highway to be a controlled access facility which restricted rights of access occurred prior to the exercise of the power of eminent domain to secure the right of way and no previous existing rights of access were involved or required to be taken.
The cases of State Highway Com. v. Burk et al., 200 Or. 211, 265 P. 2d 783, and State ex rel. State Highway Comm. v. Clevenger, 365 Mo. 970, 291 S. W. 2d 57, are cited in the court’s opinion as authority to permit consideration of consequential damages to the land remaining. While those cases would appear to be correctly decided, they deal with a different factual situation than here presented. The question there involved was severance damage only where the controlled access highway divided the land into separate tracts. Both courts held that the “unique and total character” of the condemnation, i. e., the manner, nature and extent of the taking, the separation of the land into different tracts, and the added inconvenience, if any, in going from one part of the farm to the other, *627was proper for the jury to consider in determining damages to the land remaining. Here, there was no severance, hence that factor does not enter into the instant case. Moreover, the consequential damages here sought to be established did not result from a severance of the property, but, as previously indicated, from the diversion of traffic and the denial of direct access from the new highway. The commission’s objection to instruction No. 10 should have been sustained, and requested instructions No. 1, 2 and 3, set forth in the court’s opinion should have been given.
This was a difficult case for the district court and for this court on appellate review. Much time has been spent upon it. I do not assert that the plaintiffs have not sustained damage to the land remaining. It is evident they have. My objection to the judgment is that in proving those damages improper elements were presented to the jury, and instructions were refused which should have been given.
In view of the foregoing, I would reverse the case with instructions to the district court to set aside the judgment and grant the commission a new trial.
Wertz, J., concurs in the foregoing dissent.