(dissenting).
It seems to me that the opinion of the majority proceeds from the premise that the Interstate Highway, where it goes through the village of Piedmont, is a new highway separate and distinct from the old highway that abutted •the Darnall property. From the record I get the definite impression that rather than being a separate highway this portion of the Interstate converted the existing conventional highway into one of limited access and that the old highway adjoining plaintiffs’ property became a part of the new. This. apparently was the view of the trial court and the theory on which the matter was submitted to the jury, without objection by the state.
*77Our cases seem to hold that an owner of property abutting a highway has a right of direct access to that highway and that this right is a property right which cannot be taken or damaged without compensation. Edmison v. Lowry, 3 S.D. 77, 52 N.W. 583, 17 L.R.A. 275; Hyde v. Minnesota, D. & P. Ry. Co., 29 S.D. 220, 136 N.W. 92, 40 L.R.A., N.S., 48; State Highway Commission v. Bloom, 77 S.D. 452, 93 N.W.2d 572. This rule assures the owner that he and others may go directly from his premises to the highway and from the highway to his premises. By incorporating the old highway in the new, with its limitations on access, plaintiffs’ rights in this regard have been damaged. The acquisition of such rights is provided for in the law authorizing c'ontrolled-access highways. SDC 1960 Supp. 28.09A.
In an article on this and related matters appearing in the Wisconsin Law Review, Vol. 1959, p. 567, the author on page 580 asks this question:
“Has the abutter’s right of access been impaired when the road he formerly abutted is converted into an expressway, his access to the converted freeway is cut off, but access to a service road is provided?”
His answer is
“The courts have not provided a clear answer. Three separate results have been reached in other states: (1) this is not a compensable damage ■to the right of access; (2) this is a compensable damage to the right of access only where there has been some physical taking of land; (3) this is a compensable item of damage in all cases, but the service road should be considered in mitigation of the damages to be awarded.”
In considering this summary it must be borne in mind that under our constitutional provision there may be compensable damage even though no part of the owner’s land is taken. State Highway Commission v. Bloom, supra.
*78Alfred D. Jahr, the author of Jahr, Eminent Domain, (1953) in a paper entitled Compensable Damages Due to Construction of Limited Access Highways, presented to the Second Annual Institute on Eminent Domain, sponsored by the Southwestern Legal Center, Dallas, Texas, February 25-26, I960', made this statement.
“If a conventional street, avenue, or highway is converted to or endorporated into a limited access highway and existing access rights are destroyed, the conclusion is irresistible that the owner is entitled to the same just compensation as he would have received had the easements been destroyed by any other taking.”
This,, as I see it, is the conclusion compelled by our cases.
On the question of remedy I am of the view that this type of action will lie. It seems to me that even if a sufficient appropriation exists to make SDC 1960 Supp. 33.0604 operative, it is inapplicable because under it the right to a jury trial assured by the constitution in these cases, is a matter of grace. I prefer to believe, as stated by the California court in Rose v. State of California, 19 Cal.2d 713, 123 P.2d 505, 511: “that the constitutional provision is self-executing; that is, that even if a statute has not been enacted providing a remedy for damage from the construction of public works, the landowner is entitled to enforce his constitutional right to compensation in a common-law action.” Otherwise a solemn constitutional protection, because of legislative inaction, becomes but a pleasant sounding phrase.
Accordingly, I would affirm the judgment.