Commonwealth, Department of Highways v. Hess

CONCURRING OPINION

OSBORNE, Judge.

This case and Commonwealth, Department of Highways v. Rowland, et al., Ky. 420 S.W.2d 657 were stated and voted on as companion cases. In my opinion they share a common fault which this court should immediately proceed to correct. In both cases the properties involved were situated upon U.S. Highway 25 near Williamsburg in Whitley County. The properties were *664basically one-family mountain farms of modest value. However, in recent years, being located upon a major highway with unrestricted access to the highway and near a residential community they have taken on added value. This value results from the fact that the property is adjacent to Highway 25 and enjoys unlimited access to that highway making the property desirable for both residential and business purposes. The value of the property being greatly enhanced as a result of this adjacency it was therefore greatly diminished when 1-75 was built where it cut' off much of the property from free access to U.S. 25, leaving it with only limited access to 1-75. We have held that one can not recover for loss of access where the property is reduced from a status of unlimited access to one of limited access, if the owner still has “reasonable” access. Rowland v. Commonwealth, Department of Highways, Ky., 414 S.W.2d 880 and Commonwealth, Department of Highways v. Smith, Ky., 413 S.W.2d 72. I can see no real distinction between this case and those above cited. In both instances the question is whether or not to compensate the owner for diminution in value resulting from loss of adjacency to a free access road. Whenever property derives a portion of its value from the fact that it is adjacent to a free access road it does not seem reasonable to deny recovery for diminution in value occasioned by altering the highway (either widening or raising) thereby limiting its access and allow recovery such as we are doing here where the free access to the old highway ⅛ abolished and replaced by limited access to a new highway. The owner of property either has a compensable interest in its adjacency to a highway or he does not. If he does, then any act that diminished his access should be compensa-ble. If he does not, then the state should be permitted to remove the highway without paying compensation. If loss of access is not a compensable item then the award in this case should be set aside. It is a matter of common knowledge that mountain farmland is not worth $2000 per acre, therefore it becomes obvious that we are compensating the owners for their loss of adjacency to an open access highway.

I concur in the action of the majority affirming the judgments in these cases because I believe the owners have a property interest in the adjacency of their land to an open access highway and, therefore, I would compensate them for any loss of value suffered as a result of curtailing or limiting such access. I would overrule those cases holding otherwise. As the matter now stands, we are compensating some and denying others for identically the same loss. The rule denying recovery for access has its genesis in the decisions of this court. See Wright v. Flood, 304 Ky. 122, 200 S.W.2d 117, wherein a county sought to close a rural road. Flood claimed he was damaged by the closing and insisted he was entitled to compensation under sections 13 and 242 of the Constitution. This court held:

“A careful reading of the evidence convinces us that there was no special damage to appellee’s property differing in kind and not merely in degree from that which might have been sustained by the general public when this section of the road was discontinued. That part of the road contiguous to appellee’s property which connects his private entrance with the Cropper-Cull road which in turn connects with all of the principal public roads in the vicinity was not discontinued * * *.
“ ‘ * * * the general weight of authority in requiring compensation to an owner of private property for a taking or damage under similar constitutional provisions is that the damage suffered must be to contiguous property and the direct and immediate consequence of the act complained of. Recovery cannot be had for remote or contingent injury.’ ”

It will be noted that the specific holding is to deny recovery because damage suffered was not to “contiguous” property. There, seems to be little doubt but what damages would have been allowed had the property *665been contiguous. The question was next before this court in Ex parte Commonwealth of Kentucky, Ky., 291 S.W.2d 814. This case like the Flood case was an action to close a rural road. On the question of damages this court said:

“This brings us to the question of liability for damages. We think it is fairly well established that a property owner on a road proposed to be closed is entitled to damages (for depreciation in the value of his property) only when the closing of the road will deprive him of his sole or principal means of ingress and egress. Wright v. Flood, 304 Ky. 122, 200 S.W.2d 117; Standiford Civic Club v. Commonwealth, Ky., 289 S.W.2d 498.”

The holding here is that a property owner has no compensable property right in the road to be closed even though his property be contiguous to the road, if he has another means of ingress and egress. It is interesting to note that the court cites the Flood case as authority for its holding, when the Flood case actually stands for the opposite. Here we have witnessed the disappearance of the constitutional right of the citizen to be compensated for property taken for public use. The right seems to have vanished like the rabbit from the magician’s hat, now you see it, now you don’t. As if to further allay any doubt as to whether the right had been completely annihilated, the court again wrote in Department of Highways v. Jackson, Ky., 302 S.W.2d 373:

“It is argued by amicus curiae that if a landowner suffers a depreciation in the value of his land as a result of the closing of a road, he necessarily has sustained a property damage, which is damage differing in kind from that suffered by the public generally, and for which he should be compensated, regardless of whether he continues to have a reasonable way of ingress and egress. The simple answer to this is that the enhancement in value of land attributable to the mere convenience of the routes of travel which it enjoys (whether such convenience is from the extent to which the surface of the road is improved or from the geographical location) is something which does not inure to the landowner as property.”

The rule has been reaffirmed and repeated many times since and today remains as finalized in this case, to wit, a contiguous property holder has no financial interest in the adjacency of his property to the highway and can not recover from its alteration, abandonment or closing so long as he is left “reasonable” access to the road system generally. Commonwealth, Department of Highways v. Rowland, Ky., 414 S.W.2d 880; Commonwealth, Department of Highways v. Smith, Ky., 413 S.W.2d 72; Commonwealth, Department of Highways v. Cleveland, Ky., 407 S.W.2d 417; Sloan v. Commonwealth, Department of Highways, Ky., 405 S.W.2d 294; Commonwealth, Department of Highways v. Lawton, Ky., 386 S.W.2d 466; Commonwealth, Department of Highways v. Merrill, Ky., 383 S.W.2d 327; Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844; Commonwealth, Department of Highways v. Carlisle, Ky., 363 S.W.2d 104; Department of Highways v. Jackson, Ky., 302 S.W.2d 373 and Wright v. Flood, 304 Ky. 122, 200 S.W.2d 117.

In the case now before us we are tacitly permitting recovery for loss of access or adjacency whichever you choose to call it. Otherwise there would be no justification for the size of the verdict. What we have said could not be done by direct means, we now permit to be done by indirect means. Our very actions amount to a confession that the rule announced in Ex parte Commonwealth, supra, is wrong. Therefore, that case and those following should be overruled. A property owner has a pecuniary interest in the adjacency of his property to a public highway for which he should be allowed to recover. The rule is stated in 26 Am.Jur.2d 929, § 241 as follows:

“The general rule is that persons specially injured by the vacation of a *666street or highway are entitled to recover such damages as they may sustain, even in the absence of a statute providing therefor. The discontinuance of a public street upon which a parcel of land abuts, if such street constitutes the only means of access to the parcel in question, would in legal effect be the same as the construction of an impassable barrier around such land, and discontinuance in such a case is generally held to constitute a taking of the property so cut off, inasmuch as total deprivation of access is equivalent to a taking, especially when the easement of access to the street is recognized by the substantive law of the state.”

For the foregoing reasons I concur in the results reached by the majority opinion but not for the reasons stated therein.