(dissenting).
I respectfully dissent from the conclusion that construction of sound barriers which impair abutting landowners’ interests in air, light and view is a proper street use. I would find also that the affected landowners in this case have met the requirements of Alevizos v. Metropolitan Airports Commission, 298 Minn. 471, 216 N.W.2d 651 (1974) to establish a taking for which they may be compensated.
The determination of what constitutes a proper street use has been made by the court on a case-by-case basis in the past. In Cater v. Northwestern Telephone Exchange Co., 60 Minn. 539, 63 N.W. 111 (1895), we expanded the concept of proper street use from transportation of people and property to include the transmission of communication by telephone lines. We recognized that the laying of sewer, gas, water and other utility lines was within the basic purpose for which public ways were dedicated. In all cases where we have determined “proper use” of a street or highway, the uses have served the general public and involved the transmission or transportation of people, goods or utility services. Willis v. Winona City, 59 Minn. 27, 60 N.W. 814 (1894) (construction of bridge approach which radically increased street grade held a proper street use); McCarthy v. City of Minneapolis, 203 Minn. 427, 281 N.W. 759 (1938) (construction of bridge for street railway car service held a proper street use); Cater v. Northwestern Telephone Exchange Co., 60 Minn. 539, 63 N.W. 111 (1895) (placing telephone poles at 170-foot intervals in rural area held a proper street use).
“The public use cannot lawfully go beyond, but must be confined within, the purposes for which the easement was granted by or acquired from the original owner of the soil.” Carli v. Stillwater Street Railway & Transfer Co., 28 Minn. 373, 375, 10 N.W. 205, 205 (1881). Where the use is not a proper street use and it unreasonably impairs the special easement of abutting landowners an additional servitude is placed upon the landowners’ easements, and a taking should be found. The sound barriers in question were not constructed to serve the general public, nor do they facilitate the transmission or transportation of people, goods or utility services. They were constructed to benefit a specific group of people — landowners facing the freeway.1 Un*12fortunately, they have created a far greater detriment to the interests of these abutting landowners. Just as we found a commercial railroad which was not a benefit to the general public to be an improper street use, Adams v. Chicago, Burlington & Northern Railroad, 39 Minn. 286, 39 N.W. 629 (1888), here too the purpose of the sound barriers does not serve to benefit the general public and thus does not constitute a proper street use.
This is not to say that construction of all sound barriers will result in a taking requiring compensation. The dual test we have set out in Alevizos requires that the abutting owner show a direct and substantial invasion of his easements of air, light and view and that the invasion result in a definite and measurable diminution in market value of the property interest.
The first showing, of a substantial invasion of a property interest, is similar ,to what we required in Cater, an “unreasonable] impairment of] the special easements of abutting owners.” 60 Minn. at 546, 63 N.W. at 113 (telephone lines found a proper street use). In Cater, we noted that rural telephone poles and lines did not constitute an impairment, but that in cities where 19th century technology could result in a morass of wires and poles, “the numerous wires stretched upon the crossarms frequently materially interfere with access, light and air.” Id. at 546, 63 N.W. at 113. So, too, in the case before us the abutting owners have shown that fumes trapped by the walls have caused significant adverse impact, that sunlight falling upon their land and homes has been noticeably reduced, and that the once expansive views from their yards are now cut short by stark walls rising more than 20 feet high less than 30 yards from their homes. These abutting landowners have demonstrated a substantial invasion of their property rights.
The second showing necessary to establish a taking by an improper street use is that the use has resulted in a definite and measurable diminution of the market value of their property interest. Since it is the function of the mandamus court to establish only whether a measurable loss has occurred, and not to rule on precise value in terms of dollars and cents, it appears that the plaintiffs have sustained their burden under Alevizos.
The landowners have presented evidence from which a jury could find a diminution in market value. First, Peter Patchin, a well known appraiser, in answers to a hypothetical question, placed the value of the lost scenic easement at approximately $2,000 per lot. Second, he conducted a resale analysis to aid in determining whether a diminution in market value had occurred. Because of the recentness of construction of the barriers, Mr. Patchin’s study was not as broad as could be desired, but he did conclude that the rate of appreciation of the subject home in his survey lagged 40 percent behind that of a comparable neighborhood’s homes. The commissioner of transportation offered no rebuttal to Mr. Patch-in’s testimony.
This court should not be distracted by potential litigation which would follow from the granting of the landowners’ petition for a writ of mandamus. In Lamm v. Chicago, St. Paul, Minneapolis & Omaha Railway, 45 Minn. 71, 47 N.W. 455 (1890), we did not accept this view when we continued to recognize a landowner’s right to an action against a railway company which operated on a city street:
We are asked to reconsider and overrule our decision in the Adams Case [where we established the distinction between proper and improper uses of streets].
******
The temporary evils resulting from the adoption of the rule by way of inciting *13litigation or unsettling titles are, we think, much overestimated, and will soon pass away.
45 Minn. at 78, 47 N.W. at 457. Here, the landowners’ situation is unique because the barriers in question are both high and close to the homes. Typically, barriers of this height are much further from the homes.
For the above reasons I would affirm the decision of the district court granting a writ of mandamus.
. The majority opinion reasons that it makes no difference that abutting landowners are benefited by the barriers, since the primary purpose behind the construction of the sound barriers was to ensure that the state’s operation and the public’s use of the highway are in compliance with federal regulations concerning noise pollution. The state may well be concerned with compliance with federal regulations, but the state has no power to impose a *12new servitude upon the abutting landowners’ implied easement in light, air and view without the just compensation required for the taking of private property for public use. Carli v. Stillwater Street Railway & Transfer Co., 28 Minn. 373, 377, 10 N.W. 205, 206 (1881). See also Lamm v. Chicago, St. Paul, Minneapolis & Omaha Railway, 45 Minn. 71, 75, 47 N.W. 455, 456 (1890).