(dissenting in part and concurring in part).
I would answer the first question “no” and the second question “yes,” and, therefore, respectfully dissent in part.
In a partial taking the condemnation award breaks down into (1) damages for the part taken and (2) severance damages to the part remaining. Severance damages can occur because: (a) the part remaining is a smaller, less usable tract; and (b) the part remaining is adversely affected because of the way in which the land taken from the owner and others is put to use by the taker. This second type of severance damages is also called “consequential” damages.
Consequential damages include such adverse consequences as decreased accessibility, aesthetic blight or loss, fumes, noise, and traffic inconveniences. Not all adverse consequences translate into severance damages. Some interferences with the owner’s use and enjoyment of the remaining tract are to be borne by the owner because common to the public generally and part of the cost of living in “a vibrant and progressive society.” Alevizos v. Metropolitan Airports Comm’n, 298 Minn. 471, 486, 216 N.W.2d 651, 662 (1974). The dividing line is not always easy to determine.
When no property has been taken, consequential damages are not recoverable unless the consequential injury is peculiar to the adjoining property. City of Crookston v. Erickson, 244 Minn. 321, 325, 69 N.W.2d 909, 912 (1955). It does not necessarily follow, however, that if there is a partial taking all adverse consequences are com-pensable. Because part of a tract has been taken does not always mean the owner of the remainder suffers any more or different inconveniences than his adjoining neighbors who have not had any part of their land taken. Indeed, in City of Crookston, we said that the remainder owner ordinarily cannot recover consequential damages “caused * * * by the taker’s use of property acquired from adjoining landowners even though his and all property taken from others is used to further the same project.” Id., 244 Minn, at 325, 69 N.W.2d at 913.1
Two of our cases are especially instructive on the test for consequential damages. In City of Crookston v. Erickson, supra, mentioned above, land was taken from three owners for the construction of a sewage disposal plant. Parcel A was taken in its entirety and need not concern us. With respect to both Parcels B and C there was a partial taking. About 6 acres were taken from Parcel B’s 15 acres to be used as part of the sewage disposal site but with no structures to be built on the part taken. On Parcel C, the city took a 33-foot strip for its underground sewer line. This court held that the owner of the Parcel B remainder might recover consequential severance damages for any decrease in market value caused by its undesirable proximity to the sewage disposal plant. The court also held, however, that the owner of the Parcel C remainder could not recover on a similar claim of consequential damages. The test, we said, was whether the part taken constitutes “an integral and inseparable part of a single use to which the land taken and other adjoining land is put.” Id., 244 Minn, at 327, 69 N.W.2d at 914 (citing Andrews v. Cox, 129 Conn. 475, 482, 29 A.2d 587, 590). We said the factfinder could find Parcel B met the test but, as a matter of law, that the Parcel C remainder did not. Implicit in this ruling was a determination that any *563injury to Parcel C was not sufficiently direct and substantial.
The second case is Thomsen v. State, 284 Minn. 468, 170 N.W.2d 575 (1969). In Thomsen no part of the landowner’s property was taken. There was no partial taking. Instead, the state built a highway on a right-of-way that it had long owned, but because the adjoining landowner had improvidently previously built his house within 10 feet of the right-of-way, the landowner was, to put it mildly, seriously inconvenienced. We said under these unusual facts the trial court on remand might find that the landowner had sustained damages “in a constitutional sense.” The test, we said, was whether the public improvement had “unfairly, directly, substantially, and peculiarly injured” the adjoining landowner’s property. Id., 284 Minn, at 474, 170 N.W.2d at 580. See also Wolfram v. State, 246 Minn. 264, 74 N.W.2d 510 (1956) (claim for traffic inconvenience from nearby “cloverleaf” denied, not because there was no taking but because there was no “special” damage).
Whether or not there has been a taking of land, I believe the test for when consequential adverse interference may be considered by the factfinder is whether the interference unfairly, directly, substantially, and peculiarly causes a diminution in the market value of the landowner’s property. If there has been a partial taking, that is important. The significance of a partial taking is that it may establish, in a way that a non-taking cannot, the kind of close proximity between the remainder tract and the operation of the public improvement which is necessary to establish that any injury is, indeed, direct, substantial and peculiar.
I would treat the foregoing test for allowing consideration of adverse consequences as a question of law for the trial court. Cf Hendrickson v. State, 267 Minn. 436, 445-46, 127 N.W.2d 165, 167 n. 19 (1964) (trial court ordinarily should decide “as a matter of law” if there has been damage). Whether there has been an unfair, direct, substantial, and peculiar injury determines if there has been damage in a constitutional sense. This determination relies, of course, on facts; but where undisputed facts themselves become part of the contours of the constitutional right as applied, it is for the court to make this determination. Watts v. Indiana, 338 U.S. 49, 51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801 (1949); Hooven & Allison Co. v. Evatt, 324 U.S. 652, 659, 65 S.Ct. 870, 874, 89 L.Ed. 1252 (1945).
I.
Here the south-side frontage road abutting Woodbridge was at various times closed and torn up, so that access was often circuitous and inconvenient. In addition, Woodbridge was subject to construction noise, vibration, dust, aesthetic loss and other inconveniences. These problems continued for about 3½ years.
In my opinion these interferences were direct and substantial. These construction-related activities were not, however, peculiar to Woodbridge. Nor were they different in kind to the inconveniences experienced by others owning property in close proximity to the highway construction. While the degree of inconvenience may have varied, it cannot be said the inconveniences differed in kind from those experienced generally by property owners in the area, including those whose property was not taken.
Moreover, although these interferences may have a substantial impact, that impact is temporary. The question, then, is how long must construction activities continue and in what particulars before they become relevant to market value diminution? Even in the case before us, where 3¥2 years is a substantial period of time, it is difficult to fit this factor into the before-and-after rule. The construction activity occurs after the taking. While a willing buyer at the time of taking would wish to discount the selling price for the reduced occupancy of the office building during construction yet to occur, the seller would likely counter with the expected enhanced value of the property after the new highway was completed. Yet if this were done, the net result both becomes speculative and runs *564counter to the rule that general benefits of the highway are not to be considered.
Finally, implicit in the test for compensa-ble consequential damages is the concern for a reasonable containment of land acquisition costs for public improvements. To allow condemnation awards which reflect temporary fluctuations in the market value of the remainder tract for construction inconveniences distorts and unduly inflates eminent domain parameters. If relief to landowners for construction-related inconveniences is to be allowed, it should be done by separate legislation. Compare Uniform Relocation Assistance and Real Property Acquisitions Policies Act, 42 U.S.C. 4601 et seq. and Minn.Stat. § 117.52 (1990) (relocation expense paid even though not a damage cognizable under eminent domain).
II.
This brings me to the second certified question. Prior to the new construction, it appears that the Woodbridge property, the frontage road, and Highway 12 were pretty much all on the same grade. The new construction includes a new frontage road partly on the land taken from Woodbridge, with the grade raised from 9 to 21 feet. In addition, the grade of old Highway 12 in front of Woodbridge has been lowered some 2 to 6 feet. As a result, east- and west-bound motorists on new Highway I-394 are some 11 to 27 feet below the grade for the office building. As they pass the Woodbridge site, their view of the office building is significantly reduced. This is a permanent interference.
Woodbridge claims it has an easement of view to be seen from the highway, but does not claim interference with this view is a separate item of damages, only a factor to be considered in determining diminution in value of the remainder tract. Woodbridge also cites our cases holding that a change in grade of an existing highway is compen-sable. See, e.g., Sallden v. City of Little Falls, 102 Minn. 358, 113 N.W. 884 (1907). The state, in turn, contends there is no such thing as an easement of view to be seen from the highway, only an easement of view looking out from the abutting property to the highway. The state also argues that damages for change of grade is a common law claim, not a constitutional taking, apparently having in mind the somewhat equivocal language in cases such as Electric Short Line Terminal Co. v. City of Minneapolis, 242 Minn. 1, 64 N.W.2d 149 (1954). Both parties cite cases from other jurisdictions in support of their positions.
Whether there is an implied easement of view to the abutting landowner’s property, as well as from, is an interesting question. But, as sometimes happens in a case on appeal, to say a question is interesting does not mean it has to be answered. This case is more properly analyzed as a case of consequential damages. In this context, the question is not whether there has been the taking of a property interest, an appurtenant easement of view, but whether the state’s use of the land taken (both that of Woodbridge and of others) has caused an unfair, direct, substantial and peculiar injury to Woodbridge’s remainder real estate. I agree with the majority’s opinion that it has.
It appears visibility of the office building from the highway is an important marketable attribute of the Woodbridge remainder tract, and the parties agree for the purpose of this appeal that visibility has been significantly reduced. It can also be said that this interference peculiarly injures the property and does so unfairly, in the sense Woodbridge is asked to shoulder a burden others do not.
The reason the new frontage road rises 9 to 21 feet in front of the Woodbridge property is because the road at this point must rise to join the nearby Shelard Parkway overpass. This, to me, is significant. The new frontage road is not similarly raised in front of all other property abutting the road. Thus the raised road embankment is peculiar to the Woodbridge property. This unique circumstance, coupled with the fact that the embankment is partially on land taken from Woodbridge, leads me to conclude that loss of visibility here is a factor *565to be considered in determining severance damages.
I am not so sure that the lowering of the grade of Highway 12, which affects only the center part of the right-of-way for the new highway system, should, by itself, be a factor bearing on loss of visibility as affecting the market value of the Woodbridge remainder tract. At times, visibility must yield to proper street improvements. Cf Haeussler v. Braun, 314 N.W.2d 4, 8 (Minn.1981). In this case, however, the lowering of the highway and the raising of the frontage road (together with the retaining walls installed) combine as an “integral and inseparable” part of the highway improvement which takes place next to Wood-bridge, so that all these highway features may be considered an interference contributing to loss of visibility as a consequential damage.
. “It would appear that the position taken by the courts [to allow consequential damages whenever there is a partial taking] does not withstand examination and breaks down into an arbitrary thesis both in theory and in application. Theoretically * * * the adjacent landowner who suffered loss by way of consequential damages should be reimbursed without regard to whether the sovereign took any land from him directly. Or, stated otherwise, a landowner should not be awarded consequential damages because a portion, however small, of his land was taken, where his neighbor, suffering the same loss, receives none because no portion of his land was actually taken." Annotation, Eminent Domain — Use of Adjoining Land, 59 A.L.R.3d 488, 492-93 (1974) (citations omitted).