(concurring): It is impossible for me to agree with the opinion written for the court except to concur in the result and note that the factual statement is correct although it needs supplementation. The specifications of error and contentions of the state highway commission have been properly stated.
The importance of this decision compels me to supplement the facts and relate in some detail my views of the law applicaNe to this case.
Contrary to the impression given in the syllabi and what has heretofore been written in this case, the court has before it an appeal in a condemnation case and not an action involving state police power. To emphasize this the petition in the condemnation proceedings of the state highway commission (appellant) recites in part:
“2. That petitioner states that under and by virtue of section 68-413, G. S. 1953 Supp. it has the right of eminent domain and is authorized to acquire right of way in compliance with G. S. 1949, 26-101, in the name of the State of Kansas for establishing, laying out, opening, constructing, maintaining, improving and draining the State Highway System.
*628“3. That under and by virtue of section 68-1901 through section 68-1906, G. S. 1953 Supp., the State Highway Commission has the authority to establish controlled access facilities and to construct and maintain frontage roads and to acquire private and public property, including the right of access for such controlled access facilities and frontage roads by condemnation proceedings.
“4. That on the 11th day of July, 1956, and the 13th day of February, 1957, the State Highway Commission in regular session found and determined that traffic conditions both present and future in Shawnee County, Kansas, justified and required the establishment of controlled access facilities, and that it was therefore necessary to acquire the land hereinafter described as a controlled access facility, and to acquire certain lots and parcels of land described herein for right of way and ordered that said lots and parcels of land be acquired by the State Highway Commission in the name of the State of Kansas by the exercise of the right of eminent domain as provided by section 68-413, G. S. 1933 Supp.
“6. Petitioner further alleges it hereby desires to purchase or acquire by this condemnation proceeding the right of way hereinafter described and all of the rights to control the ingress and egress in and to all such tracts designated.” (Emphasis added.)
The property taken from the landowners (appellees) by the state highway commission was described in Tract 12 (a) and included the following:
“. . . Together with the abutter’s right of access to the highway over and across the ‘FIRST’ and ‘SECOND’ courses.”
Also taken from the landowners by condemnation was the right of access along the eastern boundary of their land which had not been taken, running north and south. This was described in Tract 12 (b) as follows:
“Any abutter’s rights of access to the highway over and across a line described as follows: . . .”
In 1953 the legislature enacted Chapter 68, Article 19 (G. S. 1957 Supp., 68-1901 to 1906, inch), which authorized the establishment and acquisition of controlled access facilities by the state highway commission. G. S. 1957 Supp., 68-1903, specifically provides:
“The highway authorities, jointly or severally, may acquire the desired private or public property, including rights of access, light, air or view for controlled access facilities, by gift, devise, purchase or condemnation, in the same manner as now or hereafter authorized by law for acquiring property or property rights in connection with highways, roads and streets within their respective jurisdictions.” (Emphasis added.)
Prior to 1953 the state highway commission had no authority to acquire controlled access facilities. The provisions of G. S. *6291957 Supp., 68-413 (enacted in 1951), limit the commission in the acquisition of a right of way for state highway purposes by condemnation proceedings to an easement. It is permitted to acquire no other interest in land taken for such purpose, with certain exceptions where buildings or improvements are to be constructed which are not applicable to the facts in the instant case. Clearly, the landowner retains all other interests in the land taken which is subject to such an easement. (See also, G. S. 1949, 68-413; G. S. 1957 Supp., 68-413a; State, ex rel., v. State Highway Comm., 163 Kan. 187, 182 P. 2d 127; and Sutton v. Frazier, infra.)
With this history the legislature of this state by enacting 68-1903, supra, has spoken on the subject of controlled access facilities and prescribed the exclusive methods by which property, including rights of access, may be taken — that is, “by gift, devise, purchase or condemnation, in the same manner as now or hereafter authorized by law for acquiring property or property rights.” (Emphasis added.) The taking of rights of access from a landowner upon land which he retains interests is without any doubt the taking of a property right. What the value of such property right taken may be is another question which varies with the facts and circumstances of each case. Conceivably in a given situation they may be of little more than nominal value. Therefore, it seems to me that the legislature clearly intended by 68-1903, supra, that a landowner deprived of such property rights would be compensated therefor. Cases from other jurisdictions are not persuasive on this point since they are founded upon their own legislative enactments and legal history which are not reflected by the citation of an isolated case.
It is apparent the petition filed by the state highway commission in the action presently before the court complied strictly with the legislative mandates and particularly 68-1903, supra.
While it is true that no action was pending in the district court of Shawnee County at the time the petition in the instant case was filed with the clerk of the district court, immediately upon appeal by the landowner from the condemnation award an action was docketed which gave the district court jurisdiction of the matter in accordance with the tenor of the petition previously filed. The petition then became a jurisdictional instrument relative to the action pending in the district court, since it fully complied with the applicable condemnation statutes. (See Sutton v. Frazier, 183 Kan. 33, 325 P. 2d 338, and cases cited therein.)
*630The report of the appraisers filed with the clerk of the district court of Shawnee County on June 12, 1957, submitted on a form provided by counsel for the highway commission, made the following award to the landowners:
“12 (a) Land Taken — 4.32 acres ....................... $3,024.00
Fence — 24 rods .............................. 60.00
Abstracting .................................. 25.00
Chicken house and fence purchased............. 300.00
Total .................................... $3,409.00
“12 (b) 400 feet abutters right of access and all damages to remainder ................................ $13,220.00
Total ................................... $16,629.00”
The jury’s verdict in the amount of $23,887, exclusive of $360 for fence and chicken house not in issue, was accompanied by five special questions which were submitted to the jury and answered as follows:
“1. What was the best use to be made of the premises at the time of the taking in June, 1957?
“Answer: Motel.
“2. What was tire value of the premises before the taking?
“Answer: $46,297.00.
“3. What was the value of the 4 and 32/100 acres of land taken in June, 1957?
“Answer: $3,672.00.
“4. What was the value of the remaining land in the amount of 2 acres with the improvements thereon before the taking?
“Answer: $42,625.00.
“5. What was the value of the remaining land and premises after the taking?
“Answer: $22,770.00.”
No objection was made by the appellant to these questions submitted nor were additional questions requested.
It should be noted that following the appraisers’ award the state highway commission paid into court for the landowners the sum of $16,629, and by agreement of counsel an order of the trial court filed July 26, 1957, directed the clerk to pay to the landowners the sum of $15,129. The balance of $1,500 by agreement of counsel was paid to the landowners by a subsequent order entered on the 21st day of March, 1958.
It appears from the record herein that counsel for the state highway commission did not become concerned' with the question *631of access until the day before the trial of this action in the district court. On that date the appraisers originally appointed by the court were taken to the premises and directed by counsel for the state highway commission to determine the damages to the land remaining without allowing damage for denial of access and loss of business for the motel. They reduced their original appraisal, without consulting the district judge who appointed them for instructions, by the sum of approximately $9,000.
Without objection in the trial of the action the original report of the appraisers was introduced through testimony to the jury in cross examination by counsel for the landowners. The variance of approximately $9,000 in the testimony of the appraisers, called as witnesses for the appellant, was capitalized to the full extent by counsel for the landowners.
Assuming that an appeal by the landowner to the district court from the condemnation award brings all parties before the district court and by bringing in its entirety the question of the sufficiency of the award to the district court (Moore v. Kansas Turnpike Authority, 181 Kan. 840, 317 P. 2d 384) permits the state highway commission to raise any question concerning the award; and assuming further that the foregoing conduct of counsel for the state highway commission does not operate as an estoppel against the commission (See State, ex rel., v. Wheat Farming Co., 137 Kan. 697, 715, 22 P. 2d 1093; Kucera v. State, 160 Kan. 624, 164 P. 2d 115, and cases cited in these opinions); the record presented upon appeal does not disclose that the trial court committed reversible error in'the tidal of the case.
Should the trial court have sustained appellant’s motion to strike the testimony of all of the landowners’ expert witnesses?
The appellant contends the testimony was incompetent for the reason that it was based upon elements- of damage which were improper to consider, namely (1) deprivation of access to the new highway; (2) loss of business profits; and (3) inconvenience or circuity of travel in reaching the new highway.
Inasmuch as there is no dispute between the parties concerning the value of the land taken, attention will be focused upon elements of damage which may properly be considered in determining diminution in market value of the land remaining based upon a consideration of all of the capabilities of the property for its best and most advantageous uses as it was actually situated at the time of the taking.
*632The expert witnesses called by the landowners were fully qualified without objection by the appellant to testify concerning the diminution in market value of the land remaining. They were permitted to testify by giving their opinion concerning the market value of the remaining tract before and after the taking. The witness Harvey, after stating his opinion as above, without objection, was permitted to testify on direct examination concerning the various elements which he took into consideration in arriving at these values. Upon cross examination by counsel for the appellant each element was made the subject of extensive examination with repeated efforts by counsel for the appellant to force the witness into a position which would indicate that such element was independently considered by the witness and a definite value placed upon the particular element in arriving at the total market value. The witness, however, made it clear that he did not compute the market value on this basis, but that all of the elements considered were taken together in arriving at his opinion as to the fair market value of the remaining tract before the taking and the fair market value of the tract remaining after the taking from which the damage to the remainder was computed.
In material respects the testimony of other expert witnesses called by the landowners was similar and presents the same questions. There were no objections to the testimony of these experts except the motion of counsel for the appellant to strike their testimony.
While the term “access” was repeatedly used throughout the trial in the examination of witnesses, it is apparent that the term “access” was loosely used. There is no doubt what the witnesses had in mind was the diversion of traffic from old highway 24 to the new highway which would, as a matter of fact, almost completely destroy the motel as a business property. It may be noted in the instant case that had the state highway commission taken no rights of access the damage to the landowners would have been almost identical by reason of the elevation of the new highway constructed to the rear of the motel property. Access to the new highway would of necessity be by a circuitous route by reason of the elevated highway construction which practically conceals the motel from the view of traffic on the new highway.
What the court is actually confronted with is a request to depart from the long-established rule by which damages to the remaining *633tract in a condemnation action are determined — the fair market value of the remaining tract immediately before the taking diminished by the fair market value of such tract immediately after the taking.
The fair and reasonable market value of a tract of real property is what those wishing to purchase in good faith would be willing to give for it, and what the owner desiring to sell in good faith would be willing to take for it on the date in question, and not what it would bring at a forced sale, or on the other hand, an inflated or speculative value. (Hoy v. Kansas Turnpike Authority, 184 Kan. 70, 79, 334 P. 2d 315, and cases therein cited.) Theoretically, applied to the situation presented, 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 be sold immediately after the taking, with full knowledge of the condemnation and the use to which the property condemned could be put. The foregoing rule in this jurisdiction has no inroads or exceptions which permit any part of the diminution of the fair and reasonable market value of the remaining tract to be carved away from the whole. It is a rule designed, by a practical approach to the question of damages, to make a landowner whole where a portion of his land is taken from him by condemnation.
The individual under our constitutional form of government is paramount and his rights are protected by both the Federal and State Constitutions, in contradistinction to foreign dictatorial ideologies where the state predominates and those obsessed by the power of the state assert the police power subjugating the individual to its will. Had the landowners in the instant case purchased the motel property within six months prior to the condemnation without any knowledge of condemnation for the proposed new highway at its fair and reasonable market price, and upon condemnation were forced to succumb to the theory advanced by the state highway commission, no tribunal or person could tell them or anyone else had the rulings of the trial court been affirmed it would in effect have made them “a gift” to which they were not entitled. The simple reason is the landowners would find themselves more than $9,000 short.
*634Justice Holmes, one of the leading jurists of his time, speaking for the Supreme Court of the United States uttered pearls of wisdom touching this vital question of eminent domain and the individual rights of citizens relative to their protection in the exercise of state power under the fourteenth amendment to the Federal Constitution in Boston Chamber of Commerce v. Boston, 217 U. S. 189, 30 S. Ct. 459, 54 L. Ed. 725. He said:
“. . . But the Constitution does not require a disregard of the mode of ownership — of the state of the title ... It merely requires that an owner of property taken should he paid for what is taken from him. It deals with persons, not with tracts of land. And the question is what has the owner lost, not what has the taker gained. . . .” (Emphasis added.) (p. 195.)
Once an expert witness is qualified to testify concerning the fair and reasonable market value of a tract of land in a condemnation action by reason of experience, education and technical training, his opinion testimony becomes the evidence of the fair and reasonable market value, whether it be stated concerning the tract of land taken, the remaining portion not taken immediately before the taking, or the remaining portion not taken immediately after the taking, and the purpose of further examination to determine the elements or factors taken into consideration in arriving at his opinion concerning the fair and reasonable market value, whether on direct or cross examination, serves only to inform the jury what credence to give the expert testimony. The elements or factors taken into consideration by an expert witness may vary considerably, depending upon the specific nature of his training and experience. Experience has demonstrated that market value of land cannot be determined with exactitude and that competent and honest experts are bound to differ when they express values in dollars. Consequently, when jurors are called upon to make a final decision as to values, they are entitled to know how the experts have arrived at their estimates, what elements they have placed in the scales in solving the problem. At the same time it must be remembered that estimates as to the costs of rebuilding the motel or injury to particular uses affected by the taking, are not recoverable or admissible as distinct items of damage, but such losses may become useful as elements bearing on the market value before and after the appropriation.
■ If it can be shown that improper elements were considered by an expert witness in. arriving at his opinion testimony concerning the fair market value, thereby reflecting an improper valuation, it be*635comes the function of the trial court to properly instruct the jury with respect to the law before the case is submitted to the jury. Counsel desiring to protect the party he represents in the action must so examine the expert witness that the jury will not be confused in applying the law, as instructed by the trial court, to the facts concerning which testimony was given at the trial. (See Hoy v. Kansas Turnpike Authority, supra.)
Therefore, upon the facts and circumstances presented by the record in the instant case the trial court did not err in refusing to strike the testimony of all the landowners’ expert witnesses.
Did the trial court properly instruct the jury?
It is inescapable that the taking of a portion of the appellees’ land in the instant case and the location of a new highway thereon greatly damaged or completely destroyed the motel, located on the portion of land not taken, as a business property. Regardless of the terminology used by the expert witnesses in describing the various factors they took into consideration, this is the inescapable conclusion of their testimony. Thus, whether the elements were described as deprivation of access to the new highway, loss of business profits, inconvenience or circuity of travel in reaching the new highway, or summarized in argument as the diversion of traffic from the old highway to the new highway, the damages to the remaining tract were almost completely the result of the destruction of the motel as a business property.
Where a business property is affected by a condemnation and the element of income is present at the time of the condemnation, and not in the uncertain future, the nature and prosperity of the business may be taken into consideration in determining the fair market value of the property in question. (Bales v. Railroad Co., 92 Kan. 771, 777, 141 Pac. 1009; Eisenring v. Kansas Turnpike Authority, 183 Kan. 774, 332 P. 2d 539, and cases cited therein.)
Two cases have been before this court in which the power of the state highway commission to acquire controlled access facilities has been considered. In Simmons v. State Highway Commission, 178 Kan. 26, 283 P. 2d 392, decided in 1955, the land condemned abutted a previously existing highway in which the landowner had rights of access along the entire length of his property fronting the highway. A strip of land was condemned fronting this highway and rights of access were taken pursuant to G. S. 1957 Supp., 68-1901, et. seq. The parties there conceded the de*636privation of access to the landowner’s property was accomplished by condemnation pursuant to the controlled access facilities statute and a landowner was entitled to compensation to the extent of the value of the land taken, and for injuries to and depreciation, if any, of the remainder of the tract resulting from the appropriation of the land and rights of access in question.
In Franks v. State Highway Commission, 182 Kan. 131, 319 P. 2d 535, the landowners brought an injunction action against the state highway commission. It had previously condemned a right of way in 1951 over property of the landowners for the purpose of relocating U. S. Highway No. 24 prior to authorization by the state legislature of the acquisition of controlled access facilities. After this condemnation in 1951 and prior to the construction of the new highway thereon where no previous highway existed, the state highway commission in 1956 condemned an additional right of way to build a frontage road and rights of access to the land previously taken. This subsequent condemnation was abandoned as to the landowners. Thereafter the commission proceeded with the construction of the new U. S. Highway No. 24 as a controlled access facility taking the right of access, and the landowners filed an injunction action to enjoin the taking of their access. The action came to this court on an appeal from an order overruling the commission’s demurrer to the petition. In affirming the trial court, by a unanimous decision, it was stated:
“The allegations of the petition make it appear that if an injunction were refused, the commission, without condemnation, could limit and control plaintiffs’ previous access to what is now a controlled access facility. This involves a vital property right. (25 Am. pur., Highways, §154, p. 448; 39 C. J. S., Highways, § 141, p. 1081.) Such exigencies may later compel the trial court to deny the injunction because it would inflict great injury upon the commission and its power of eminent domain and would adversely affect the public interest. In lieu of a decree to enjoin, the court could award damages to plaintiffs as compensation (Provident Mut. Life Ins. Co. v. State Highway Comm., 155 Kan. 351, 355, 125 P. 2d 346) by reason of the controlled access facility and its effect on plaintiffs’ right of access to and from their property.” (Emphasis added.) (p. 137.)
The effect of the language used in the opinion for the court herein is to overrule the Franks case, since no previous highway had been constructed on the relocated route of U. S. Highway No. 24 at the time access rights were taken by the commencement of grading and construction on the new highway.
*637Insofar as the instructions given are material to the issues herein the trial court instructed the jury as follows:
“2. In this appeal there are two items for you to consider and decide. The first is to determine the reasonable market value of the 4.32 acres of land condemned and appropriated by the appellee as of June 12, 1957, and appellants are entitled to recover from the appellee such reasonable market value of the land so condemned and appropriated for best and most advantageous uses. The second item for you to consider is whether the appellants suffered any damage to the remainder of their land by reason of the location of the highway of the appellee thereon. If you find the appellants have suffered damage, then you should award such sum as you may find would reasonably compensate them therefor in accordance with the instructions hereinafter given.
“4. If you find that appellants’ land has suffered damages by reason of the appropriation of a portion thereof, and the locating of the highway over the same, then you are instructed, in ascertaining such damage, that you have a right to consider all of the capabilities of the land and its most advantageous use as it was situated at the time of such appropriation, or on June 12,1957.
“5. You are further instructed that you cannot allow the appellants any recovery for damage that may have accrued subsequent to June 12, 1957, the date of the appropriation of the land, or for any future, speculative or prospective damage that may or may not thereafter have accrued.
“6. The measure of damage for any injury which you may find occurred to appellants from the location of the highway along their land is the difference between the market value of the remainder of appellants’ land immediately before and immediately after the appropriation.
“7. In this case appellants are entitled, in any event, to recover from the appellee the actual market value of the land appropriated in the location of the highway in question, and you should first determine the reasonable market value of tire land so appropriated under the instructions hereinbefore given. After you have done this, you should then proceed to determine whether the appellants have suffered any damage to the remainder of their land, by reason of the location of said highway, independently of the value of the land actually taken. If you find that the remainder of appellants’ land has sustained damage as hereinbefore instructed you should then proceed to determine the amount of such damage, and in returning your verdict in this case you should insert the total amount of the recovery to which you find the appellants are entitled.
“10. 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 also 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.”
While counsel for the state highway commission complain of instruction No. 10 to which they objected at the time of trial, no *638objection was made to the other instructions given which have been quoted above. These instructions to which there was no objection properly state the general law applicable to the trial of a condemnation action where only a portion of the land is taken from a landowner. It is important to note, from the emphasized portions above that damages to the remainder of the land were consistently stated to be by reason of the appropriation of a portion thereof, and the locating of the highway over the same. This clearly indicates, in accordance with the law consistently applied by this court, that with respect to remainder damages the jury is entitled to consider the use to which the land taken will be put. Thus, in the recent case of Hoy v. Kansas Turnpike Authority, supra, it was proper in allowing damages for the remainder to consider the high elevation of the county highway on the approach to the overpass on the turnpike directly in front of the farm improvements. Another recent case in which the use to which the condemned right of way property would be put by the Kansas Turnpike Authority was vitally material is Randle v. Kansas Turnpike Authority, 181 Kan. 416, 312 P. 2d 235.
As heretofore stated the legislature provided that where controlled access facilities are established, the property, including rights of access, required for the right of way must be taken by gift, devise, purchase or condemnation, and by reason of the history relative to condemnation for highway right of way purposes the taking of a right of access was a property right. While it may be argued that the right of access to a new highway, which had never before existed, is different than a right of access to an existing highway, nevertheless it is the taking of a property right (Franks v. State Highway Commission, supra) and must be considered among the elements in determining the damages to the remainder of a tract of land where only a portion thereof is taken for a right of way by condemnation.
The trial court, therefore, in giving instruction No. 10, which is not as artfully worded as it may have been, informed the jury that the taking of access' rights was a proper element to consider in determining the damages to the remaining portion of the land not taken. An instruction cannot be isolated apart from other instructions given but must be read together with all the instructions given, and when so considered the instruction was proper. There was no reason to believe that the jury considered instruction No. *63910 as one permitting the independent evaluation of the right of access as additional damages in determining the compensation awarded the landowner, since there was no evidence that the right of access was valued independently in arriving at the fair and reasonable market value of the remaining tract immediately before and after the taking in ascertaining the damage to the remainder concerning which the expert witnesses testified. This is fortified by the answers given by the jury to the special questions.
For the reasons heretofore stated the requested instructions of the state highway commission were properly denied, except as hereafter noted.
Was it proper to consider diversion of traffic from the old highway to the new highway as an element of damage to the remaining tract of land in the instant case?
An answer to the foregoing question requires an understanding of the law concerning consequential damages. “Consequential damages” is the term applied to damages to, or the destruction of, property not actually taken, and they arise when property is not actually taken or entered but an injury to it occurs as the natural result of an act lawfully done by another. The general rule is that acts done in the proper exercise of governmental powers, or pursuant to authority conferred by a valid act of the legislature, and not directly encroaching on private property, although their consequences may impair its use or value, do not constitute a taking, under the constitutional or statutory requirements of compensation for property taken and do not entitle the owner of such property to compensation, in the absence of constitutional or statutory provisions requiring compensation to be made for damaging, injuring or destroying property, such loss being damnum absque injuria. (29 C. J. S., Eminent Domain, § 111, pp. 919,920.)
Counsel for the state highway commission rely heavily upon consequential damage cases. One of these is the leading case of Heller v. A. T. & S. F. Rld. Co., 28 Kan. 625, in which a substantial portion of the opinion written by Justice Rrewer is quoted in the dissenting opinion to the effect that the benefits which come and go from the changing course of travel are not matters in respect to which any individual has any vested right against the judgment of the public authorities. In the Heller case Syllabus ¶ 3 reads:
“Where a part of a street is attempted to be vacated and the owners of lots abutting thereon do not complain, held, that the owner of a lot in another block, in front of whose lot the street is left its full width, and access to *640whose lot is in no respect disturbed or abridged, may not maintain an action to restrain the vacation, although thereby the general course of travel will probably be thrown on some other street and no longer pass in front of said lot-owner’s property.”
Clearly there was no taking of property from the landowner, and this is typical of the consequential damage cases in this jurisdiction. One of the most recent consequential damage cases upon which reliance is placed by the appellant is Richert v. Board of Education of the City of Newton, 177 Kan. 502, 280 P. 2d 596. This case illustrates a typical set of facts in which the consequential damage rule is applicable. The owner of the lone remaining residence in a city block sought to recover damages as a result of the extending of existing school property by the Board of Education in the exercise of its power of eminent domain. The remaining residence owned by the plaintiff was not included in the condemnation proceedings. The landowner’s petition seeking damages alleged a “taking” of his property in effect on the ground that the damages he suffered were different in kind and special instead of different in degree from those suffered by the community in general. It was held the consequential damages suffered by the owner could not be recovered in that such damages differed only in degree, and not in kind, from those suffered by others in the immediate vicinity and the public in general. As such, they were not covered by the constitution or statutes of Kansas. Reference is made to the opinion of the Richert case for further discussion and citation of authorities relative to the rule concerning consequential damages.
Even where the damages are consequential there is a respectable line of authorities in this jurisdiction permitting recovery under the word “taken” in the statute where the damages are special and peculiar to the owner. These damages are said not to be within the consequential damage rule. (C. B. U. P. Rld. Co. v. Andrews, 41 Kan. 370, 21 Pac. 276; Prickett v. Belvue Drainage District, 159 Kan. 136, 152 P. 2d 870; Sester v. Belvue Drainage District, 159 Kan. 143, 152 P. 2d 875 [after trial, 162 Kan. 1, 173 P. 2d 619]; 109 Am. St. Rep., p. 909; and 29 C. J. S., Eminent Domain, § 110, p. 917.) See also the discussion in Heller v. A. T. & S. F. Rld. Co., supra.
It is true, the various factors taken into consideration in arriving at the fair market value of a tract of land or portion thereof, as heretofore discussed, cannot be evaluated independently and added *641together to arrive at a total figure. This is clearly illustrated in Saathoff v. State Highway Comm., 146 Kan. 465, 72 P. 2d 74; Case v. State Highway Comm., 156 Kan. 163, 131 P. 2d 696; and Hoy v. Kansas Turnpike Authority, supra. All factors which affect the fair and reasonable market value of a tract of land or portion thereof must be considered together.
The argument is advanced that if diversion of traffic cannot be considered as an independent element and separately added to the total award for damages in making a determination of damages to the remainder of a tract of land in a condemnation action, where only a portion of the entire tract is taken, then to permit a jury to consider diversion of traffic as one of the elements, among others, responsible for the diminution of the fair and reasonable market value, under the rule stated by the trial court in instruction No. 6, it permits the landowners to recover indirectly that which they cannot recover directly. This is untenable. Pushed to its logical conclusion no landowner could recover damages in any condemnation action. It would simply be a process of eliminating each element considered by an expert witness in arriving at his opinion concerning the fair and reasonable market value of a tract of land, since no one factor can be independently evaluated and added with others to arrive at the total. It amounts to reverse reasoning. It would further be fallacious to reason that because in a consequential damage case, where no property is taken from a landowner, there can be no recovery of damages for diversion of traffic, that this factor should be eliminated as an element in the determination of damages in a condemnation action where there is a direct invasion of the landowner’s property.
A few courts of last resort in other jurisdictions by making references to hypothetical facts as close to the demarcation line as possible between condemnation cases and consequential damage cases have held that it was improper to consider diversion of traffic as an element of damage in a condemnation case. (Jahoda v. State Road Department [Florida, 1958], 106 So. 2d 870; and Board of County Com'rs v. Slaughter, 49 N. M. 141, 158 P. 2d 859.) For reasons heretofore stated, cases on eminent domain from foreign jurisdictions are not persuasive.
If the opinion expressed herein would be bolstered by resort to a foreign case, Regina et al. v. Monroe County, Appellant, 319 Pa. 257, 179 A. 36, presents a factual situation almost identical with *642the case at bar, except that instead of being a motel the business affected was a hotel. The court there said:
“. . . It is true that a specific estimate of future profits cannot constitute a separate item of damages in fixing the compensation to be awarded in cases of this kind: . . . It is equally true, however, that decrease or loss of business as a result of a condemnation is an appropriate factor to be considered in determining the depreciation in the fair market value of the property: . . . Likewise, the necessary expenditure involved in restoring the property to a fit condition for continuing the business or other former use may be considered, not as a specific item of damage, but as affecting the mar-, ket value: . . .” (p.259.)
The court further said in the opinion:
. . It appears clearly from the testimony complained of, most of which was elicited on cross-examination, that the consideration given these various elements by plaintiff’s experts was with regard to their effect on the market value of the property. In the words of one witness, these factors were considered ‘from the angle of sales proposition as to what influence these changes would have on a prospective customer.’ A jury might reasonably infer that the changes suffered in plaintiff’s premises would materially affect its value to a prospective customer, and it cannot be denied that the relocation of the road was responsible foi• the changes.” (Emphasis added.) (p. 260.)
Further in the opinion it was said:
“. . . In the case before us, an important element of the value of the premises as a hotel or boarding house was derived from its location along the stream of traffic, and there is no doubt that that value might well be lessened in the eyes of a purchaser as a result of the relocation of the road. Clearly, the admission of the testimony complained of was not' error, nor was the charge based thereon improper.” (p. 261.)
A more recent Pennsylvania case, Johnson’s Petition, 344 Pa. 5, 23 A. 2d 880, cited in the dissenting opinion herein, on facts very close to the demarcation line of consequential damage cases reached a contrary conclusion from that stated in the Regina case, but distinguished the Regina case and did not overrule it.
The extent to which this court has gone in permitting recovery for depreciation to the remainder of a tract of land where only a portion thereof is taken by eminent domain, is illustrated by the case of Ives v. Kansas Turnpike Authority, 184 Kan. 134, 334 P. 2d 399, where two tracts of land located one mile apart were operated as a single farming unit. It was held proper, under the rule of law stated in the trial court’s instruction No. 6 herein, to regard the two tracts as one unit in the assessment of damages to the remaining *643tract although a limited access right of way was taken from only one of the tracts.
An award in an eminent domain proceeding is a bar to the recovery of damages subsequently accruing; therefore, all items of damage which are recoverable must be initially recovered. Compensation to be adequate must be placed on the maximum use of the rights acquired, rather than the maximum intended use of the rights acquired.
In conclusion it may be said, while a landowner from whom a portion of an entire tract of land is taken by eminent domain proceedings is not entitled to recover separate items of damage for deprivation of access to a new highway, estimated loss of business profits, inconveniences or circuity of travel in reaching the new highway, or diversion of traffic, nevertheless, the decrease or loss of business as a result of the condemnation by reason of the foregoing factors may be considered in determining the depreciation in the fair and reasonable market value of the remaining property. The influence these factors would have on a prospective purchaser, no doubt caused by a relocation of the highway, were proper for a jury to consider. It is proper for a jury to consider all of the factors which an owner or a prospective purchaser could reasonably urge as affecting the fair price. Clearly, the trial court did not err in its refusal to strike the testimony of the landowners’ expert witnesses, and it did not commit reversible error in the instructions given the jury or in its refusal to give the instructions requested by the appellant.
Parker, C. J., joins in the foregoing concurring opinion.