dissenting: In my opinion this case has not been correctly decided and I must respectfully dissent. Within the time permitted, I shall note briefly some of my objections to the court’s affirmance of the judgment.
It seems to me there are three basic questions involved in this appeal. The first is, what is the right of access of an abutting landowner to an existing street or highway; second, the extent and limits of that right as applied to the facts and circumstances of this case; and third, the manner of curtailing the right of access, and the damages, if any, which flow from a taking or a restriction thereof.
The majority opinion purports to define the nature of the right of access of an abutting landowner in both the syllabus and in the body of the opinion. I am in accord with the court’s opinion that the right of access in and to a street or highway attaches to abutting lands which is a property right and cannot be taken for public use without just compensation. But, the bald statement of the nature of the right does not define the extent and limits of that right. This is a first prerequisite to a correct decision of this case.
Recognized authorities state that, among other things, the right of access includes the right to use the street and highway as an outlet from the abutting property to a connecting highway by any mode of travel or conveyance appropriate to a highway, that is, the right of ingress and egress from the property which abuts upon an existing street or highway, thus enabling the owner to enter and leave his premises by way of the public highway and establishes the accessibility of his premises for his patrons, clients and customers; also, the right to use the street in front of the property in connection with the use and enjoyment of it in such manner as is customary and reasonable. In other words, the right of access is an “easement appurtenant” which is justified upon the grounds of necessity and is such as is reasonably necessary for the enjoyment of the land for all purposes for which it is adapted. (Highbarger v. Milford, 71 Kan. 331, 80 Pac. 633; Longnecker v. Railroad Co., 80 Rev. pp. 115-123; Lewis, Eminent Domain, 190 [3d ed.]; 25 Am. Jur., Highways, § 154, p. 448; 39 C. J. S., Highways, § 141, pp. 1079-*4641083.) While entire access may not be cut off, if the landowner has free and convenient access to his property and to the improvements thereon, and his means of ingress and egress are not substantially interferred with by the public, he has no complaint (39 C. J. S., Highways, § 141, p. 1081). The syllabus and corresponding portion of the majority opinion recognize this principle and correctly state the well-accepted rule that an abutting owner is not entitled to access to his land at all points between the property and the street and highway, and that the use of the street and highway may be restricted by the public authority (in this case by the State Highway Commission acting pursuant to G. S. 1957 Supp., 68-1902), in the exercise of the police power whenever necessary to promote the safety, peace, health and general welfare of the people; further, that whether damages for restricting the right of access are compensable under eminent domain or noncompensable under the police power depends upon the relative importance of the interests affected, and that courts must weigh the relative interests of the public and the individual and strike a just balance so that government will not be unduly restricted in its functions for the public good, while at the same time, give due effect to the policy of eminent domain to insure the individual against an unreasonable loss occasioned by the. exercise of police power. This holding accords with that expressed by Mr. Justice Holmes in Penna. Coal Co. v. Mahon, 260 U. S. 393, 67 L. Ed. 322, 43 S. Ct. 158, and quoted in my dissenting opinion in Atkinson v. State Highway Commission, 184 Kan. 658, 666, 339 P. 2d 334. In the decision referred to Mr. Justice Holmes said:
“Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and due process clauses are gone. One fact for' consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts. The greatest weight is given to the judgment of the legislature, but it always is open to interested patties to contend that the legislaure has gone beyond its constitutional power.
“. . . As we have said, this a question of degree — and therefore cannot be disposed of by general propositions. . . .” (pp. 413, 416.) (Emphasis supplied.)
*465As indicated by a map in the appellant’s abstract, the appellees were the owners of the entire south half of Section 28, Township 2 South, Range 12 East, excepting 40 acres in the northwest corner of the southwest quarter, the cemetery tract, and the three-acre tract owned by Goclcel Lumber Company. As the court’s opinion indicates, the right of access on the west half of the south boundary of the southeast quarter was restricted for 1410 feet except the 40 foot “Fort Markley” access connection which was not disturbed. To the west of that point, and on the south boundary of the southwest quarter, the appellees have two houses with access connection to each, giving them unrestricted access to U. S. Highway 36 at both points. In addition to those three unrestricted access connections to U. S. Highway 36, the landowners were provided a new and fourth access connection at a point on the south boundary of the southeast quarter where the frontage road curved east to serve the lumber yard.
Thus, the landowners were left in a better position, with respect to access connections, than they were prior to the commencement of the condemnation proceedings. They still had their property with unrestricted access, and even with restricted access affecting the 1410 feet they were provided with one more access connection than they previously had. At this point it is important to note that, although the landowners were claiming a great loss by reason of the restriction of the right of access, Mr. Smith testified that he did not need nor want the new access connection.
“A. I don’t need it.
“Q. You don’t need it?
“A. No, you can cross the ditch anywhere with a car or automobile or truck, I don’t know why they put in a third entrance there.
“Q. In other words you don’t think it adds any to the value of that property?
“A. I didn’t need it.”
In view of these facts and circumstances can it be said that the landowners have been denied reasonable access to and from the public highway? In weighing the relative interests of the public and that of the landowners so as to strike a just balance between the police power of the state exercised by the Commission pursuant to G. S. 1957 Supp. 68-1902 when it determined that the portion of U. S. Highway 36 in question should be a controlled access facility, and the effect to be given to the policy of eminent domain to insure the landowners against an unreasonable loss occasioned by an unreasonable denial of access, can it be said they have been *466subjected to such a loss as a result of the Commission’s action and the proceedings in question? In my opinion these questions must be answered in the negative.
Yet, while conceding that the landowners are not entitled, as against the public, to access to their lands at all points between it and U. S. Highway 36, the court has approved an award of damages in the amount of $5000 in eminent domain for restricting the right of access to the 1410 feet on the very boundary line that it holds the landowners do not have access at all points between it and the highway. Thus, it would appear the court is approving an award of damages for the deprivation of a right to which it says the landowners are not entitled!
■ I agree with the court’s opinion that there are two methods by which the right of access may be restricted or impaired — the police power and the power of eminent domain. Under the former, damages resulting to property are not compensable, while under the latter, the power to take private property for a public purpose requires payment of just' compensation. When the Commission converts an existing highway into a controlled access facility pursuant to G. S. 1957 Supp., 68-1902, and restricts or prohibits access thereto, abutting owners suffer injuries in varying degrees. But, it does not follow that the state is responsible for every result that may ensue (1 Elliott, Roads and Streets, § 298, p. 359). If the restriction of the right of access under the police power does not substantially interfere with ingress and egress to and from the property, injuries sustained by the owner are not compensable. In the case of K. N. & D. Rly. Co. v. Cuykendall, 42 Kan. 234, 21 Pac. 1051, it was said:
“The rule to be deduced from these cases, and from what has been said by the court in the cases of C. B. Rld. Co. v. Twine, 23 Kas. 585; K. C. & O. Rld. Co. v. Hicks, 30 id. 288; and Heller v. A. T. & S. F. Rld. Co., 28 id. 625, is that in order to justify a recovery for damages by the abutting lot-owner, there must be such a practical obstruction of the street in front of the lots that the owner is denied ingress to and egress from them.” (1. c. 236.)
See Venard v. Cross, 8 Kan. 248, 254, 255; C. B. U. P. Rld. Co. v. Andrews, 30 Kan. 590, 593, 594, 596, 597, 2 Pac. 677; L. N. & S. Rly. Co. v. Curtan, 51 Kan. 432, 438, 439, 33 Pac. 297; Longnecker v. Railroad Co., 80 Kan. 413, 420, 423, 102 Pac. 492; Highbarger v. Milford, 71 Kan. 331, 80 Pac. 633. See, also, Sample v. Jefferson County, 108 Kan. 498, 196 Pac. 440; Foster v. City of Topeka, 112 Kan. 253, 210 Pac. 341; Gantz v. Jefferson County Comm'rs, 129 Kan. 66, 282 Pac. 265; and Banister v. Atchison T. & S. F. Rly. Co., 129 Kan. 302, *467282 Pac. 751. Where, however, the circumstances are such that the right of access may not be restricted under the police power, a taking of the right must be accomplished under eminent domain with' payment of adequate compensation. The question of. what circumstances require invoking eminent domain is one.of degree and cannot be disposed of by general proposition;, the question depends upon the particular facts. . Obviously, if there is a total blocking of access, the owner is entitled to ■ compensation since that restriction, upon its face, would be unreasonable and the right must be taken by eminent domain. On the other hand, where the restriction does not substantially interfere with the owner’s ingress and egress to and from his property, as in the present case, injuries suffered by the abutting owner are not compensable. These are values enjoyed under an implied limitation and must yield to the police power.
Much more could be said but time does not permit. There are one or two other points, however, which deserve attention.
The determination of how far the Commission can proceed under the police power in restricting the right of access is in no wise affected by statutory, enactments prescribing the nature or quantity of title acquired in condemning a right of way for highway purposes. Reference is made in the court’s opinion to section 68-413, and that the Commission only acquires an easement for right of way purposes. That is true, but the right of access of an abutting owner is not dependent upon the quantum of title acquired by the condemner, nor is it material in determining whether the Commission, under the facts of a particular case, or for that matter, under the facts of the case at bar, may restrict the right of access by the lawful exercise of the police power under section 68-1902. Whether the title of the right of way is in fee simple or merely an easement is immaterial.
In my opinion, the construction placed upon sections 68-1902 and 68-1903 by the court’s opinion is restrictive and does not accord with the legislative intent. It is said that section 68-1903 provides the exclusive method by which the right of access may be acquired for the establishment of a controlled access facility and that “The legislature intended by 68-1903, supra, that a landowner deprived of abutters’ rights of access would be compensated for them.” This appears to be inconsistent with what is said and held with respect to whether damages are compensable under eminent domain or non*468compensable under the police power and that the determination of the question is dependent upon whether the relative importance of the interests affected, with the conclusion that courts must weigh the relative interests of the public and the individual in order that government may properly function and the individual guarded against unreasonable loss.
The conclusion of the court quoted above is based upon the erroneous premise that section 68-1902, providing for the establishment of a controlled access facility and authorizing highway authorities to regulate, restrict or prohibit access thereto, presupposes a controlled access facility has already been established pursuant to the act and that necessary property rights have been acquired. In my judgment, section 68-1902 contemplates that, and practical application of it requires, highway authorities proceed in just the reverse order. It is the highway authorities who, in the first instance, determine under the section whether a controlled access facility will be established, and, if it is, whether access thereto will be regulated, restricted or prohibited by the same resolution which establishes the facility. This occurs long prior to the commencement of proceedings in eminent domain to acquire property rights such as the right of way, borrow pits, etc., necessary for the construction of the controlled access facility. As the court’s opinion is presently written, the right of highway authorities under section 68-1902, to regulate, restrict or prohibit access to a controlled access facility when such facility is established, is construed to a nullity.
For this and other reasons, I would reverse the judgment.