specially concurring:
Having concurred in the opinion authored by Justice Johnson, I write only to emphasize the strength of the statement that an existing business is property, and also to comment on the citation to Hughes v. State of Idaho, both appearing at (p. 591, 759 P.2d at p. 882).
I.
Justice Johnson has written that “the right to conduct a business is property,”— which is absolutely correct. The underlying issue in the Robison case was the business owner’s complaint that access to his place of business was being impaired by picketing union workers. No governmental action was involved and hence there was no claim of an inverse taking.1 Injunctive relief was sought and obtained.
Similarly, in O’Connor v. City of Moscow, 69 Idaho 37, 202 P.2d 401 (1949), cited by Justice Johnson, also at p. 592, 759 P.2d at p. 883, the only relief sought was a declaration of the invalidity of an ordinance which in an arbitrary and unreasonable exercise of city police power deprived the O’Connors of their property.
The Winther v. City of Weippe case, cited along with O’Connor, was in all respects similar to the latter mentioned, both citing to and relying upon it. The three cases spanned 45 years, and involved 15 different persons sitting where we five now sit. In one case only was there a single dissent. In the O’Connor case district judge Sutphen sitting in the stead and place of Justice Budge, did not vote with the majority because of his view that:
The business of operating billiard and pool tables for gain and a beer parlor where draft beer is sold is not recognized as a useful business, although it is a lawful one, and I do not think it can seriously be contended that the City of Moscow does not have the authority to confine such business places to reasonable territorial limits within its borders.
69 Idaho at 45, 202 P.2d at 406.
In the O’Connor case Justice Hyatt, although he thereafter also cited to the Robison case, chose to borrow a more encompassing definition of property:
Property has been well defined in Spann v. Dallas, 111 Tex. 350, 235 S.W. 513, 514, 19 A.L.R. 1387, as follows:
Property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment and disposal. Anything which destroys any of these elements of property, to that extent destroys the property itself. The substantial value of property lies in its use. If the right of use be denied, the value of the property is annihilated and ownership is rendered a barren right.
69 Idaho at 42, 202 P.2d at 404.
It was a unanimous Court which in Winther quoted the foregoing passage (and more) from O’Connor as the predicate for its judgment and opinion. It can safely be stated that an established business is property.
II.
Hughes v. State, 80 Idaho 286, 328 P.2d 397 (1958), also cited in the Court’s opinion (p. 592, 759 P.2d at p. 883), received some, but certainly not due, consideration in the recent case of Merritt v. State of Idaho, 113 Idaho 142, 742 P.2d 397 (1986). Justice *598Johnson today correctly cites it for the proposition that “[p]rivate property of all classifications may be taken for public use.” That statement in Hughes was made subsequent to a prior paragraph in Hughes which read:
We now approach the proposition, whether appellants’ allegedly destroyed easement, constituting the right of vehicular access of the public generally to their property for business purposes, is property capable of being “taken” and capable of severance from the property to which it appertains and of which it is a part.
80 Idaho at 293, 328 P.2d at 400 (emphasis added). And, immediately following the single sentence which Justice Johnson utilizes, this Court in Hughes went on to state the holding that:
Real property includes “that which is appurtenant to the Land.” I.C. sec. 55-101. It includes all easements attached to the land. I.C. sec. 55-603. It includes hereditaments, whether corporeal or incorporeal, such as easements, and every interest in lands. 73 C.J.S. Property § 7, p. 159.
Easements are included in the classification of estates and rights in lands which may be taken for public use. I.C. sec. 7-702.
80 Idaho at 293, 328 P.2d at 400.
Thereafter, in order, the opinion presented authority substantiating that holding (including a case decided 80 years ago which held that “Any destruction, interruption or deprivation of the common, usual and ordinary use of property is by the weight of authority a taking of one’s property in violation of the constitutional guarantee.” Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 231, 101 P. 81, 86 (1908)), and then gave a somewhat expanded version of the one-liner quoted by Justice Johnson, saying more fully:
Our review of Idaho’s Constitution, statutes and decisions, clearly shows that the power of eminent domain extends to every kind of property taken for public use, including the right of access to public streets, such being an estate or interest in and appurtenant to real property; and since such right of access constitutes an interest in, by virtue of being an easement appurtenant to, a larger parcel, the court, jury or referee must ascertain and assess the damages which will accrue to the portion not sought to be condemned by reason of the severance of the portion — the right of access — sought to be condemned, and the construction of the improvement. I.C. sec. 7-711.
We therefore hold that appellants’ allegedly destroyed right of business access to their business property, if such be proven, constituted a taking of their property, whether or not accompanied by a taking of physical property, and constituted an element of damage, as dues also any element of alleged taking of their physical property, ...
80 Idaho at 295, 328 P.2d at 402.
Unfortunately, as considerations of law are concerned, and unjustly as considerations of justice be concerned, the majority opinion in Merritt did not comprehend what had been held and stated in Hughes, and by selective reading came up with the untenable understanding that all vehicular access had to be “destroyed,” 113 Idaho at 144, 742 P.2d at 399, notwithstanding that the Hughes court’s opinion stated that essential questions presented were “(a) whether the destruction or impairment of access constitutes a taking of property, and (b) whether destroyed or impaired access must be accompanied by a taking of physical property to constitute an element of damages.” 80 Idaho at 292, 328 P.2d at 403 (emphasis supplied).
Expecting that it might be asked what is the point in discussing the Merritt case, the answer is readily made. In this case now before us inverse condemnation is the issue. It was also the issue in Hughes, and again in Merritt. Hughes was not even understood by the majority in Merritt, where Justices Bakes and Donaldson formed a majority by joining with Justice Huntley.
This they did notwithstanding the caution extended by Justice Shepard, where he quoted directly from a then recent perti*599nent opinion authored by Justice Donaldson, with whom Justice Bakes had concurred. Justice Donaldson, joined by Justice Bakes a short time before Merritt had this view of the Hughes [and Mabe ] holdings:
The right of access of a property owner to an abutting public street has long been the subject of judicial discourse in Idaho. A thorough review of authority reveals it is a right which Idaho courts have been particularly careful to protect____ Nor is interference with access merely an element of severance damages to be considered in an action for condemnation, but is in itself a property right the taking of which may be compensated in an action for inverse condemnation, that is ‘whether or not accompanied by a taking of physical property.’ (Citing Hughes and Mabe v. State, 83 Idaho 222, 86 Idaho 254, 360 P.2d 799, 385 P.2d 401).
Chief Justice Shepard in Merritt v. State, 113 Idaho 142, 146-147, 742 P.2d 397, 401-02 (1986), quoting the dissent of Justice Donaldson, joined by Justice Bakes in State v. Bastian, 97 Idaho 444, 546 P.2d 399 (1976). Following which, Justice Shepard went on to add in Merritt:
Although our previous cases are not totally clear, I believe the law of Idaho is, or should be, that a landowner whose property abuts a public street or road and enjoys access thereto cannot be summarily deprived of that property right without compensation. This I believe regardless of what the law may be in other jurisdictions. Although the public necessity and convenience may demand the taking of property, such may not be done without an award of just compensation. No argument regarding the safety or convenience of the general public justifies the taking of such a property right absent just compensation.
Merritt, supra, 113 Idaho 147, 742 P.2d at 402.
In my Merritt dissent, I spoke similarly by quoting from a brief authored by counsel for the State in the case of Lobdell v. State of Idaho, 89 Idaho 559, 407 P.2d 135 (1965):
While no clear cut rule existed in 1957 at the time respondents constructed the highway adjacent to appellants’ premises, nevertheless on several occasions since then this Court has determined and declared that access rights are a property interest. See Hughes v. State, (1958), 80 Idaho 286; 328 P.2d 397. Clearly then when the state acquires existing access between privately owned real property and the public highway it comes into possession of a real property interest. This rule has been applied to some forms of impairment. See State ex rel Rich v. Fonburg, (1958), 80 Idaho 269; 328 P.2d 60, and Farris v. City of Twin Falls, (1958 [1959]), 81 Idaho 583; 347 P.2d 996.
Merritt v. State, 113 Idaho at 148, 742 P.2d at 403 (emphasis added).
Following which was added my own thought that:
That brief also could have cited the then even more recent case of Mabe v. State, 83 Idaho 222, 360 P.2d 799 (1961), which reaffirmed Hughes, and also discussed Farris and Fonburg, of which the Highway Department had to be well aware when it stipulated to a taking in the Lobdell case.
Id. 148, 742 P.2d at 403. All of which should establish to any reasoning mind that Merritt was wrongly decided, and is a travesty. Whenever Hughes is correctly cited and relied upon, as is so today, it seems in order to point to the mischief which was occasioned when it was negligently misread by the author, who was joined by two justices who had expressed just the opposite view earlier. At West Publishing Company the person in charge of writing the head-notes depicting the holdings in the opinion was aware that the Court in Hughes was considering destruction or impairment of access as being a compensable taking. See headnote 6, 80 Idaho at 288, 328 P.2d at 399.
Regretfully I register my disappointment that today it is Chief Justice Shepard who seemingly does not entertain the same view which he displayed so convincingly in Merritt. He sees Robison as having dealt with *600different times, and correctly notes that the relief sought was injunctive. He correctly points to the same in O'Connor. As mentioned earlier, however, no governmental authority was involved in Robison, and, as to O'Connor, inverse condemnation did not become a remedy in Idaho until Renninger v. State, 70 Idaho 170, 213 P.2d 911 (1950). The best conclusion which I am able to draw is that the Chief Justice adheres to the view that real property, or interests therein are subject to condemnation and inverse condemnation, but that an established business is not. That I do not understand.
. The doctrine of inverse condemnation had yet to be declared.