(dissenting). I disagree with the principle of law applied by the majority in the instant action that a person, whose means of livelihood is taken away by the state in connection with the removal and construction of a new interstate highway, is precluded from recovering damages under the provisions of sec. 84.29, Stats.
It would seem to me that the first question that is presented by the undisputed facts in the action is whether the plaintiff has been deprived of his property. The United States supreme court in determining the question of whether a person has been deprived of his property rights recognizes *375the principle of law that governmental action in the form of regulation may be so onerous as to constitute a taking under the constitution. Goldblatt v. Hempstead (1962), 369 U. S. 590, 594, 82 Sup. Ct. 987, 8 L. Ed. (2d) 130. See also State v. Herwig (1962), 17 Wis. (2d) 442, 447, 117 N. W. (2d) 335, where this court stated that there is a limit to the extent to which the state may restrict the use of property or damage property under the police power.
Courts have recognized that a landowner is entitled to compensation where his direct right of access is taken, even though other, but less satisfactory means of access are available. Oklahoma Turnpike Authority v. Chandler (Okla. 1957), 316 Pac. (2d) 828, 832; Blount County v. McPherson (1958), 268 Ala. 133, 135, 105 So. (2d) 117; Mc Moran v. State (1959), 55 Wash. (2d) 37, 40, 345 Pac. (2d) 598; State v. Thelberg (1960), 87 Ariz. 318, 324, 350 Pac. (2d) 988.
Sec. 84.29 (4), Stats., requires that, when an interstate highway is laid out along an existing public highway reasonable provisions must be made for access to abutting property by means of frontage roads. In Iowa State Highway Comm. v. Smith (1957), 248 Iowa 869, 877, 82 N. W. (2d) 755, 760, the Iowa supreme court stated that the question of whether an abutting property owner has been denied reasonable access to a controlled-access highway is a question of fact, not of law. The Iowa court also held that the public cannot deprive abutting landowners from free and convenient access to their properties without just compensation.-
Highway 30, prior to the construction of the new Interstate Highway 94, was a part of the state trunk intrastate highway system. The plaintiffs access rights to Highway 30 in the instant action existed without any prior permit being required, and he established a business which is totally dependent upon some highway traffic. Termination of any *376and all public access to his place of business from a highway, and giving him instead what amounts to no more than a dead-end private driveway ending at his premises, which will require automobiles to travel from two and one-fourth to two and one-half miles off a highway to purchase service-station products, tires, and auto repairs, has the effect of putting him out of business altogether. While the state is not taking any of plaintiffs real estate, the elimination of a public highway upon which his business is dependent, deprives him of his livelihood, and in return for this, he was awarded compensation of $15. This clearly raises a substantial question of whether there has, in fact, been a taking of his property without adequate compensation, as well as a question of whether the dead-end frontage road provided by the state allows him reasonable access to the highway, which is required by sec. 84.29 (4), Stats.
As to what constitutes compensable damage within the meaning of constitutional guaranties, the rule which has received the most support in actual application is that compensation is required not only when there is an injury that would be actionable at common law, but also in all cases in which it appears that there has been some physical disturbance of a right, either public or private, which the owner of a parcel of land enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally. 18 Am. Jur., Eminent Domain, p. 765, sec. 139. The Colorado court, in reversing the judgment of the trial court based upon a finding of a jury, that the owner of land adjacent to a pre-existing highway suffered no damage when his rights of access were condemned as an incident to the conversion of the highway to a freeway, held that these rights of access constituted property. The court *377also held that while it might seem difficult to establish the market value of such rights, the true value could be found in the difference between the value of the land and its use for any and all purposes before the destruction of the rights, and its value thereafter. Boxberger v. State Highway Comm. (1952), 126 Colo. 526, 534, 535, 251 Pac. (2d) 920.
The motion for summary judgment should have been denied because substantial issues of fact and damages exist which in my opinion cannot be resolved upon affidavits.