(dissenting) — In my opinion, (1) the portion of highway in question is a “new location” within the meaning of the 1947 act; and (2) even if it is not, this is not determinative of the director’s authority to acquire fee title to the tracts described in exceptions (a) and (b).
The majority properly points out that the act defines “new locations” as a “new highway” or “new street” and further provides that the act shall not apply to “existing” highways and streets (Rem. Supp. 1947, § 6402-60). This is not a very helpful definition. In order to determine what is meant by “new highway” and “new street,” it is necessary to consider the purpose of the legislature in setting up this “new location” limitation. The reason why the legislature limited the director’s authority, in the case of limited access facilities, to “new locations” was so that “the valuable right of access possessed by the abutting land owner on existing highways” should not be taken from him by condemnation proceedings. State ex rel. Veys v. Superior Court, 33 Wn. (2d) 638, 643, 206 P. (2d) 1028.
It becomes clear from this that, in order for a highway or street to be considered a “new highway” or “new street,” within the meaning of the 1947 act, it must (1) be on property or right of way acquired after the effective date of the 1947 act, and thus “new”; and (2) be so located that there is no substantial interference with the access rights of abutting owners on and to the then existing highway. Where a proposed highway or street meets both of these tests, the legislative purpose, as defined in the Veys case, has been met, and the director’s authority as to the acquisition and construction of limited access facilities attaches.
The section of highway in question meets both of these tests. The relocated route abutting the condemnee’s tracts was not even laid out, much less acquired, until two years after enactment of the 1947 act. It is this factor which distinguishes the instant case from the Veys case, where the rights of way in connection with which the director sought to impose limited access rights were acquired in 1938 and 1942.
*666The section of highway here in question is located, for the most part, several hundred feet from the present location. The existing location is to be retained for local use. It will not intersect the new location at grade. There will be over-crossings and undercrossings where the old and new highways cross. Only one such crossing is contemplated within the parcels involved in this suit. There will be turnouts and cloverleaf arrangements which make it possible to pass from one highway to the other by connecting roads. This is exactly the plan provided for by the statute, for § 6 of the 1947 act (Laws of 1947, chapter 202, § 6, p. 871, Rem. Supp. 1947, § 6402-65) contains the following:
“. . . The state, counties and incorporated cities and towns shall have authority to provide for the elimination of sections at grade of limited access facilities with existing state or county roads, and with city or town streets, by grade separation or service road, or by closing off such roads and streets at the right of way boundary line of such limited access facility; and after the establishment of any such facility, no highway or street which is not part of said facility, shall intersect the same at grade. ...”
The record does not disclose that any property owner abutting on the existing highway will have his access rights as to that highway interfered with in any respect by the acquisition and construction of the new section of highway here in question. There is hence no impairment of presently established valuable rights of access.
Balanced against this evidence of a new and substantial deviation between the existing and new highways, there is only the fact that the new highway is a relocation of the old one, and has been given the designation formerly held by the old one — primary state highway No. 1. The legislative definition of primary state highway No. 1 has never been more than a designation of a general north-south route from Blaine to Vancouver, through certain named cities and valleys “by the most feasible route.” See Laws of 1913, chapter 65, § 2, p. 221; Laws of 1937, chapter 190, § 1, p. 933.
It is improbable that the legislature intended to withhold from the director all authority as to limited access highways *667passing between these points. If it did not intend to withhold that authority in general, then the fact that in this case the designation of the existing highway (primary state highway No. 1) has been transferred to the new one should not be considered as controlling.
The foregoing reasons lead me to believe that the section of relocated primary state highway No. 1 in question should be regarded as a “new highway,” and so a “new location” within the meaning of the 1947 act. If this be true, then the only question remaining as to the acquisition of limited access facilities (exception [c] in the court order) is whether the director acted arbitrarily and capriciously in designating such rights for acquisition. The majority does not discuss this point. My examination of the record convinces me that such action was not arbitrary or capricious.
It should be noted that the purport of the majority opinion is not at all limited to the director’s authority to acquire limited access rights by condemnation. It extends, in fact, to every phase of the 1947 act and all of the authority the director may exercise thereunder, whether in connection with condemnations, purchases, improvements, construction, regulation, or otherwise. This is true because the director’s authority as to all of these activities, under the 1947 act, is limited to access facilities “on new locations.” Moreover, the majority opinion not only has this sweeping effect as to the relocation of primary state highway No. 1, but also as to the relocation of any other primary state highway, where it is sought to meet modern traffic demands and safety requirements by limiting access to the relocated highway.
Exceptions (a) and (b) do not involve the acquisition of limited access rights, but, rather, the acquisition of fee title to tracts abutting the proposed highway. Hence, even under the majority view that the 1947 act is' not applicable, this should not be deemed determinative of the correctness of the trial court’s ruling as to those two exceptions. The director has general authority, under Laws of 1937, chapter 53, § 25, p. 146 (Rem. Rev. Stat., Vol. 7A, § 6400-25), to condemn lands for highway purposes, including lands needed
*668“. . . so as to afford unobstructed vision therefor toward any railroad crossing or another public highway crossing ... or any site for other necessary structures or for structures dor the health and accommodation of persons traveling or stopping upon the primary state highways of this state, or for any other highway purpose '. . . ”
It was the contention of respondent in the court below, and here, that (1) the above statute did not authorize the director to condemn the tracts involved in exceptions (a) and (b); and (2) that, in any event, the director acted arbitrarily in designating these tracts for acquisition. The majority does not deal with these contentions, and it would therefore serve no good purpose for me to discuss them at length. Suffice it to say that I do not agree with either of these contentions and would reverse as to exceptions (a) and (b), whatever conclusion is reached with respect to the 1947 act.
March 16, 1951. Petition for rehearing denied.