McMoran v. State

Hunter, J.

This appeal involves an action for damages by an abutting property owner for interference by the state with his easement of ingress and egress to the highway.

The department of highways constructed a concrete curb along the edge of the outside lane of the traveled portion of the thoroughfare (state primary highway No. 2 in Chelan county), thirty-five feet from the outer edge of the highway right of way, upon which the plaintiff’s property abuts, paralleling the entire frontage of his property. The thirty-five foot strip between the curb line and the plaintiff’s property line has been converted by the state into a frontage road, whereby plaintiff may attain access to the thoroughfare by an opening in the curb line, 50 feet past the termination of his property line.

At the trial, there being no dispute on these facts, no witnesses were called upon the question of damages which, by stipulation, was left to further proceedings. Each party moved for a summary judgment. The state’s motion was granted.

The trial court entered its findings, which read in part as follows:

“V. That said curb is intended to separate a lane for through traffic from a road designed for local use.”

The court concluded therefrom that the construction of the curb was a proper exercise of defendant’s police power and, in pursuance thereof, that there was no taking or damaging of the access rights of the plaintiff by said con*39struction. Summary judgment of dismissal was thereupon entered in favor of the defendant. Plaintiff appeals.

The sole issue in this case is whether the appellant is entitled to be paid compensation by the respondent state of Washington, under Art. I, amendment 9, § 16, of our state constitution, for its taking of his right of direct ingress and egress to the highway upon which his property abuts.

It is admitted by respondent that it relies primarily on the case of Walker v. State, 48 Wn. (2d) 587, 295 P. (2d) 328 (1956), to support its judgment. The essence of our holding in that case is contained in the following paragraphs:

“The owner of property abutting upon a public thoroughfare has a right to free and convenient access thereto. This right of ingress and egress attaches to the land. It is a property right, as complete as ownership of the land itself.
“On numerous occasions, this court has held that the abutting property owner is entitled to just compensation if this right is taken or damaged. [Citations omitted.]
“In these cases, there was either physical injury to the owner’s property or physical impairment of access. None of them involves the division of a public thoroughfare into separate roadways by division stripes or concrete curbs. Exercise of police power was not involved. Factually, they are distinguishable from the case before us.
“The facts alleged in the amended complaint indicate that the real basis of plaintiffs’ claim for damages is the diversion of westbound traffic from their motel business. Since there is eastbound traffic in front of plaintiffs’ property, it is permissible for us to infer that westbound traffic may turn, at some point west of plaintiffs’ property, and become eastbound, and thus approach plaintiffs’ property.
“Plaintiffs have no property right in the continuation or maintenance of the flow of traffic past their property. They still have free and unhampered ingress and egress to their property. Once on the highway, to which they have free access, they are in the same position and subject to the same police power regulations as every other member of the traveling public. Plaintiffs, and every member of the traveling public subject to traffic regulations, have the same right of free access to the property from the highway. Re-routing and diversion of traffic are police power regulations. Circuity of route, resulting from an exercise of the *40police power, is an incidental result of a lawful act. It is not the taking or damaging of a property right.” (Italics ours.)

It appears clear to us that the holding in the Walker case is predicated upon the right of the state, in the exercise of its police power, to erect safety and control devices to regulate the flow of traffic on the highways. It clearly limits this right of regulation to the users of the highway, after they have gained access to the thoroughfare where the general traffic flows. It affirmatively recognized that this right of regulation, under the facts in that case, did not interfere with the abutting property owner’s ingress and egress to the highway.

The Walker case, supra, further recognizes the established rule of law, which is controlling in the instant case, that the owner of property abutting upon a public thoroughfare has a right to free and convenient access thereto. This right of ingress and egress attaches to the land. It is a property right, as complete as ownership of the land itself. In State v. Calkins, 50 Wn. (2d) 716, 314 P. (2d) 449 (1957), we said:

“It is well established that the owner of land abutting upon a conventional highway has an easement of ingress and egress. This has been treated as a property right, attached to the land. The courts unanimously hold that such an owner is entitled to just compensation if this easement or property right is taken or damaged. ...” (Italics ours.)

See, also, State v. Fox, 53 Wn. (2d) 216, 332 P. (2d) 943 (1958).

In the instant case, the appellant was deprived of this property right by the respondent’s erection of the physical obstruction of a concrete curbing, without payment of compensation therefor. Respondent contends, however, that the appellant has not been denied direct access to the highway, since he has direct access to the right of way. There is no merit in such contention. The appellant was entitled to direct access to the thoroughfare where the traffic flows, as contemplated in the Walker case, supra.

*41The trial court erred in granting respondent’s motion for a summary judgment, and entering judgment dismissing appellant’s action with prejudice. The judgment of the trial court is reversed, and the case is remanded for the entry of a judgment for liability only, with the damages for the taking of appellant’s right of access to be determined at a trial on the merits.

Weaver, C. J., Mallery, Hill, Donworth, Rosellini, and Foster, JJ. concur.

Finley, J., concurs in the result.