Aust v. Marcello

Mr. Justice Kelleher

dissenting. This case presents us with the question which was not before this court in Sullivan v. Marcello, 100 R. I. 241, 214 A.2d 181 (1965). Here, the Austs, unlike Sullivan, have not lost all access to the highway which abuts their property. It is for this reason that I believe that the provisions of G. L. 1956 (1968 Reenactment) §24-10-3 are inapposite. When construing a statute, one should give its words their plain meaning unless a contrary intent clearly appears. Except in case of equivocal and ambiguous language, the words of a statute cannot be interpreted or extended but must be applied literally. Podborski v. William H. Haskell Mfg. Co., 109 R. I. 1, 279 A.2d 914 (1971). The statute speaks of an extinguishment of existing easements of access, light or air. Webster’s Third New International Dictionary in defining the word “extinguish” uses such phrases as to “do away with entirely,” “wipe out,” “make extinct,” “nullify.” I see nothing to interpret in the 1937 statute. It is applicable only in those instances where one’s right of access has been obliterated. Here, the Austs’ access to Killingly Street has been diminished, not destroyed.

An abutter’s right to the highway has been described at length in Wolfe v. City of Providence, 77 R. I. 192, 74 A.2d 843 (1950); Newman v. Mayor of Newport, 73 R. I. 385, 57 A.2d 173 (1948); and Allen & Reed, Inc. v. Presbrey, 50 R. I. 53, 144 A. 888 (1929). Wolfe said that this right could not be unreasonably interfered with. Newman held that this right was subject to the police power but that it could not be unreasonably interfered with. The Allen & Reed case holds that this right cannot be materially *389impaired without just compensation. Wolfe concerned the municipality’s right to barricade the entrance to a gas station. Newman involved the denial of application of the owner of a proposed gas station to make cuts in the curbing. The dispute in Allen & Reed arose because of no-parking and one-hour-parking signs posted around its property. This court faulted the barricading and the denial of the curb-cut permits. It sanctioned the posting of the no-parking and the one-hour-parking signs.

In Sullivan, the court cited two lines of cases where a governmental agency, because of its involvement with a so-called limited access highway, impeded an individual’s access to his property. One line took the position that the loss was not compensable because it occurred while the state was in the exercise of- its-police power. The other view, described in Sullivan as the- “California rule,” calls for compensation. This diversity of opinion was described as indicating a conflict between the police power and the power of eminent domain; In Sullivan noncompensability was described as being the majority view, while the awarding of compensation was considered to be the minority view. I believe that in actuality there is no diversity of opinion.

The key to compensation, in my opinion, is the showing of a material or unreasonable impairment of access referred to in the Wolfe, Newman and Allen & Reed cases. The police-power view is found in Tubular Service Corp. v. Comm’r of the State Highway Dept., 77 N. J. Super. 556, 187 A.2d 201 (1963), affm’d in 40 N. J. 331, 191 A.2d 745 (1963), where it refused to set forth a formula as to the degree of impairment of highway access, short of total or substantial deprivation, beyond which the state would be required to pay compensation. Later, the court in State v. Monmouth Hills, Inc., 110 N. J. Super. 449, 266 A.2d 133 (1970), in reaffirming the Tubular case, cited Painter *390v. State, 177 Neb. 905, 131 N.W.2d 587 (1964), where it was said,

“ ‘The right of access of an abutting property owner to a public road is not an unlimited one. He is entitled to reasonable access and the state in the exercise of its police power may limit access to abutting private property if reasonable access remains.’ ” (emphasis added)

The case often cited by those jurisdictions which hold that loss of access is compensable is State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 350 P.2d 988 (1960), which states:

“An examination of many authorities from various jurisdictions convinces us that the weight of authority in the United States is to the effect that either the destruction or the material impairment of the access easement of an abutting property owner to such highway is compensable.
fi-K- * *-
“When the controlled-access highway is constructed upon the right of way of the conventional highway and the owner’s ingress and egress to abutting property has been destroyed or substantially impaired, he may recover damages therefor. The damages may be merely nominal or they may be severe.
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“The measure of damages for the destruction or impairment of access * * * is the difference between the market value of the abutting property immediately before and immediately after the destruction or impairment thereof. The damages awarded the abutting landowner for destruction or impairment of access therefore is based, not upon the value of the right of access to the highway, but rather, upon the difference in the value of the remaining property before and after the access thereto has been destroyed or impaired. This in turn is based upon the highest and best use to which the land involved is best suited before and after the right of access is molested.” (emphasis added)

*391In the Thelberg case the trial court had found a substantial impairment of access.

The so-called California rule had its genesis in People v. Ricciardi, 23 Cal.2d 390, 144 P.2d 799 (1943). An examination of that case shows the court conditioned compensation upon a showing of a “substantial impairment” of access.

The rule to be fashioned, I believe, would call for compensation for diminution of access upon a showing by the property owner of a substantial or material impairment of that right. The author (Professor William B. Stoebuck) of The Property Right of Access Versus the Power of Eminent Domain, 47 Tex. L. Rev. 733 (1969), discusses the various ways this right can be impaired, i.e., closing of a street, cul-de-sac, limited access highways, divided highways, one-way streets, etc. He concludes by observing that, since the property owner has a right to reasonable access to the abutting public way, it does not matter if one speaks of police power or eminent domain, but rather, a taking calling for money damages has occurred if there has been an “unreasonable” or “substantial” diminution of that right. In State ex rel. Dept. of Highways v. Linnecke, 86 Nev. 257, 468 P.2d 8 (1970), the court, in adopting the rule in Thelberg, ruled that the determination of whether such a “substantial impairment” has been established is a question of law, while the extent of such impairment is a question of fact.1

In summary, I would in cases such as the one presently before us require a showing of a substantial impairment of access to the abutting way before damages could be awarded.

*392John M. Booth, for petitioners. Richard J. Israel, Attorney General, George H. Egan, Special Asst. Attorney General, for respondent.

The trial justice found that notwithstanding the location of the freeway line, the Austs still retained reasonable access to Killingly Street. This finding, in my opinion, is another way of saying that the Austs had failed to show a substantial impairment of the right of access. Accordingly, I would affirm the trial justice’s denial of any monetary award to the Austs.

The delineation of the rights of owners of land such as the Austs’ property has' been a fruitful source of litigation. A compendium of judicial thought on these matters can be found in 42 A.L.R.3d 13 (1972).