dissenting. The majority does not cite a single authority that sustains the view expressed, although there is an abundance of literature and cases on the subject involved, including splendid Law Review articles such as: Cunnyngham, The Limited-Access Highway from a Lawyer’s Viewpoint, 13 Mo. L. Rev. 19; Controlled Access Highways in Iowa, 43 Iowa L. Rev. 258; Covey, Control of Highway Access, 38 Nebr. L. Rev. 407; Clarke, The Limited-Access Highway, 27 Wash. L. Rev. Ill; Covey, Highway Protection Through Control of Access and Roadside Development, 1959 Wise. L. Rev. 367. None of the Law Review articles supports the position taken by the majority, and there are no cases sustaining that view.
In my opinion the only thing acquired by the State in this action, in addition to the one acre valued at $250, is the fee in the right of way, in which the State already had a right of way easement. In a case of this kind the fee has a nominal value only. People v. Sayig, 101 Cal. App. 2d 890, 226 P. 2d 702. In 1952 Woollard was paid for the 250-foot right of way across his property. Woollard v. State of Ark. Highway Dept., 220 Ark. 731, 249 S. W. 2d 564. It will be seen from the decision in that case that there was taken into consideration, among other things, the fact that the Highway Department contemplated building a modern highway of such dimensions and character that Woollard would be precluded from crossing it at any place except the points designated and prepared by the Highway Department for that purpose. "When the right of way was taken by the State, Woollard lost all interest in the land embraced within the right of way except the fee, which is of no practical value, and the right of access, and he still has access to the right of way. In the first Woollard case, this Court said: “Even though the Commission’s existing commitment is to construct only a 24-foot two-lane highway, its plan for the future, when justified by available funds, is to build a second two-lane road, separated from the first by a parkway that Avill provide earth for the necessary fills and also promote the public safety by dividing the two arteries of traffic. By acquiring a sufficiently broad right-of-way in the first instance the Commission expects to avoid the expense that is incident to any attempt to enlarge a roadbed that has been hemmed in by the various commercial establishments that tend to spring up along the border of a public highway. ’ ’
Woollard should not be compensated more than once for the taking of the right of way. In the case of Arkansas State Highway Commission v. Fox, decided March 23, 1959, 230 Ark. 287, 322 S. W. 2d 81, this Court said: “Unquestionably a landowner is entitled to be fully compensated for his loss under the processes of eminent domain. However, we have established methods by which a determination of ‘just compensation’ is to be made. In a situation as the case at bar where there is a partial taking of a landowner’s property we have established the rule that the measure of damages is the difference between the value of the whole land before the appropriation and the value of the portion remaining after the appropriation. Pulaski County v. Horton, 224 Ark. 864, 276 S. W. 2d 706 (1955); Herndon v. Pulaski County, 196 Ark. 284, 117 S. W. 2d 1051 (1938); Newport Levee District v. Price, 148 Ark. 122, 229 S. W. 12 (1921).
“In spelling out this rule we said in Little Rock, Mississippi River and Texas Railway Co. v. Allen, 41 Ark. 431 (1883): ‘ The correct rule for measuring damages is to determine the value of the whole land without the railway at the time same was built, then find the value of the portion remaining after the railway is built, and the difference between the two estimates will be the true compensation to which the party owning the land is entitled. ’ ’ ’
In the case of Keith v. Drainage Dist. No. 7 of Poinsett County, 183 Ark. 384, 36 S. W. 2d 59, the Court quoted with approval the rule laid down in Newgass v. Railway Co., 54 Ark. 140, 15 S. W. 188, that the value of private property taken for public use must be determined as of the date a petition for condemnation is filed. In the case at bar the petition was filed and the right of way was taken back in 1952. Every element that can fairly enter into the question of market value and which a business man of ordinary prudence would consider before purchasing property should also be considered by the jury in arriving at the value of the property before and after the taking. Pulaski County v. Horton, 224 Ark. 864, 276 S. W. 2d 706. And in Little Rock, Mississippi River and Texas Railway Co. v. Allen, 41 Ark. 431, this Court said that the measure of damages for the right of way taken by a railroad company across a city or town lot is the difference between the value of the whole land without the road at the time it was built and the value of the portion remaining after it was built; and in estimating this value the jury should consider all present and prospective actual damages resulting to the owner from the prudent construction and operation of •the road, the effect the road would have in decreasing the value of the land for gardening purposes, as well as inconveniences caused by embankment, excavations, ditches and obstruction to the free egress and ingress of the premises.
And in Little Rock and Ft. Smith Railroad Co. v. Greer, 77 Ark. 387, 96 S. W. 129, the Court said: “It is a well-established rule of law that the owner of land taken for railroad purposes is entitled, before or at the time of the taking, to compensation for all damages, present and prospective, which he sustains by reason of the construction of the railroad . . . Such damages include the value of that part of the land which is taken, as well as the damages consequent upon such taking to the residue. The doctrine invoked by appellant has its rationale in the presumption that, in the absence of proof to the contrary, the owner ivho is entitled to such compensation received same before or at the time his land toas charged with the servitu.de; that this toas considered and settled when the owner conveyed the land to the railroad or when the railroad acquired its title by condemnation; ... ” [Emphasis supplied] On rehearing Judge McCulloch said: ‘ ‘ The principle is made clear in the original opinion that where a railroad corporation lawfully acquires a right of way over land, either by grant, prescription or condemnation, such acquisition covers all damages, present and prospective, resulting to the owner tohose land is invaded. This upon the theory that full compensation is allowed at the time, and can he recovered only once.” [Emphasis supplied] Thus, according to the law of this State, as heretofore announced by this Court, the presumption is that Woollard, the landowner, was paid full value for the right of way in 1952.
Of course, Woollard was damaged by the severance of his place, but that damage was paid for in 1952. In the case at bar the landowners are being allowed compensation on the theory that their plantation is being effectively cut in two. The answer to that theory is that it was cut in two by the first taking in 1952, when 98 acres were taken. The one acre taken at this time certainly does not cut the 2,800 acre plantation in two. In 1952 it was known that the highway would sever the plantation, and witnesses so testified in the first case, and it was shown that the kind of road to be constructed would prevent the crossing of the right of way except at points designated by the Highway Department. The fact that such a right of way would be constructed is pointed out in the first Woollard case above mentioned.
To sustain its view, the majority cites Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738, and Arkansas State Highway Commission v. Dupree, 228 Ark. 1032, 311 S. W. 2d 791. But those two cases do not support the majority’s contention. It is clearly recognized in those cases that the property owner had the right to recover damages for the severance of his property, and the question was whether the damages allowed in the trial court were excessive. It was pointed out in those two cases that the fact that the Highway Department was providing facilities for the property owners to cross the right of way had a tendency to mitigate the damages at that time, the time of the taking. There is nothing in either of those cases which indicates that the property owner can come into court several years after the taking and recover damages because he is unable to cross the highway at any place he might wish to cross it. The majority mentions that county roads crossing the right of way will be closed.
But this Court has held time and again that a property owner cannot recover damages because a right of way has been changed or closed. See Risser v. City of Little Rock, 225 Ark. 318, 281 S. W. 2d 949, and cases cited therein.
By purchasing the 250-foot right of way across the Woollard land in 1952, the State acquired the valid right to construct four strips of concrete pavement, or any other number of such strips, on such right of way. In the case of Muse v. Mississippi State Highway Commission, 233 Miss. 694, 103 So. 2d 839, 847, the court said: “Land condemned for highway purposes without limitation as to surface use is at all times under the control of the highway authorities, which may make such use of the land as may be required; and the abutting landowner’s right of access and user are subject to the right of the state under the police power to regulate and control the traffic on the highway in the interest of safety, and to restrict in a reasonable manner entrances from abutting property.” In Jones Beach Blvd. Estate v. Moses, 268 N. Y. 362, 197 N. E. 313, 315, the court, in discussing the rights of an abutting landowner to an easement of access in a public highway and the right of the state to regulate and control traffic on the public highways, said: “The rights of an abutter are subject to the right of the state to regulate and control the public highways for the benefit of the traveling public. Sauer v. City of New York, 180 N. Y. 27, 72 N. E. 579, 70 L. R. A. 717; Ryan v. Preston, 59 App. Div. 97, 69 N. Y. S. 100. See Perlmutter v. Greene, 259 N. Y. 327, 182 N. E. 5 [81 A. L. R. 1543]; Kane v. New York El. R. Co., 125 N. Y. 164, 176, 26 N. E. 278, 11 L. R. A. 640. Cf. Miller v. State, 229 App. Div. 423, 243 N. Y. S. 212; Farrell v. Rose, 253 N. Y. 73, 170 N. E. 498, 68 A. L. R. 1505. Although the abutting owner may be inconvenienced by a regulation, if it is reasonably adapted to benefit the traveling public, he has no remedy unless given one by some express statute.”
The State has the authority to regulate the traffic and prevent Woollard or anyone else from moving automobiles, trucks and heavy farm implements across the right of way except at certain places where the access is controlled in order to protect the traveling public from the hazards that would be present if such equipment were permitted to cross at just any place, day or night. The abutter’s right of access is subject to the superior public interest. In the Wisconsin case of Neenah v. Krueger, 206 Wis. 473, 240 N. W. 402, the court said: “However, this right [the abutter’s right of access] is, in common with most other rights, subject to reasonable regulations in the public interest and for the promotion of- public convenience and safety. ’ ’
The State has the right under the easement obtained in 1952 to build a modern highway and control the traffic thereon and did not acquire any additional rights in that respect by virtue of acquiring the fee in 1959. Ark. Stat. § 76-201.5 provides: “The Commission [Highway Commission] shall be vested with the following powers and shall have the following duties: . . . (m) To adopt reasonable rules and regulations from time to time for the protection of, and covering, traffic on and in the use of the State Highway System and in controlling use of, and access to, the highways . . . ” Under this statute the Commission can certainly adopt rules against left-hand turns, U-turns, and crossing the highway except at designated points. In addition, by virtue of its police power the State has such authority. Carazalla v. State of Wisconsin, 270 Wis. 593, 71 N. W. 2d 276. In Muse v. Mississippi State Highway Commission, 233 Miss. 694, 103 So. 2d 839, 847, the court said: “As the problem of regulating motor vehicle traffic on the highways has become more and more complex, new standards of design for highway construction have been adopted by the highway authorities to reduce the hazards of travel and expedite the flow of traffic. . . . Multiple lane highways have been constructed in all parts of the country, and median strips or neutral zones between lanes of traffic on multiple lane highways, with interchanges or crossovers at reasonable intervals to enable motorists to pass from one traffic lane to another, have been authorized and provided for in the standards of design adopted for the construction of such highways. Such median strips or neutral zones provide for a complete separation of traffic moving in opposite directions, and reduce the hazards incident to motor vehicle travel; and the establishment of such median strips or neutral zones have been recognized as a proper exercise of the police power. Rand v. Mississippi State Highway Commission, 191 Miss. 230, 199 So. 374; Commonwealth v. Nolan, 189 Ky. 34, 224 S. W. 506, 11 A. L. R. 202; Jones Beach Blvd. Estate v. Moses, supra [268 N. Y. 362, 197 N. E. 313, 100 A. L. R. 487]; City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S. W. 2d 187; Impagliazzo v. Nassau County, Sup., 123 N. Y. S. 2d 819.”
It will be recalled that in the first Woollard case a 250-foot right of way was taken by the State. Among other things, Woollard contended that a right of way of that width was not needed. In pointing out that a 250-foot right of way was not of an excessive width, this Court said: “It is evident that the present undertaking would not be necessary had the State taken a sufficiently wide easement when the road from Marion to Turrell was originally laid out. In these circumstances it is certainly permissible to look ahead in its planning.” Woollard v. State, supra [220 Ark. 731, 249 S. W. 2d 564].
There are four concrete strips on the right of way. Woollard has complete and full access to the two outside strips. He may move his vehicles onto these two strips at any point he so desires, and travel in either direction to controlled points, where he can cross the two center concrete strips with safety to himself and others. I don’t see how anyone can read the first Woollard case and say it was contemplated that the landowner would have the right to cross the two center strips, when constructed, at any place other than controlled points. The opinion clearly states that it was planned to build a parkway down the middle of the two strips from which dirt would be taken to be used as fills for the concrete strips. There is nothing to indicate that a vehicle would be able to cross this parkway. It was to be put there to separate the lanes of traffic and make the highway safe.
According to the great weight of authority, and the majority has cited no authority to the contrary, Wo ollard has not been denied access to the system of highways, and he is entitled to nothing more. Department of Highways v. Jackson, 302 S. W. 2d 373. He does not have the right to cross the highway with his equipment at any point he may choose. Turner v. State Roads Commission, 213 Md. 428, 132 A. 2d 455; Dougherty County v. Hornsby, 213 Ga. 114, 97 S. E. 2d 300; Brady v. Smith, 139 W. Va. 259, 79 S. E. 2d 851. In the last cited cases the highways were divided into traffic lanes with a physical barrier between them, which allows the abutter to travel in only one direction when leaving his property. Our own case of City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S. W. 2d 187, is to the same effect. When once on the highway an abutter’s rights are no more nor less than any other user of the highway. Jones Beach Blvd. Estate v. Moses, 197 N. E. 313; Dougherty County v. Hornsby, 97 S. E. 2d 300.
In the case of Turner v. State Roads Commission, 213 Md. 428, 132 A. 2d 455, the court quoted from Langley Shopping Center, Inc. v. State Roads Commission, 213 Md. 230, 131 A. 2d 690, 693, as follows: “ ‘It seems to us entirely reasonable that if the State could divert traffic entirely away from the plaintiffs’ corners without being-liable for damages for doing so, it may, in the interest of safety, and without incurring liability for damages, interpose an obstacle which may render access to the plaintiffs ’ properties less easy but which does not actually or virtually destroy the plaintiffs ’ access to the highway. An opposite view would require the State to pay through the nose for the privilege of further improving and adding to the safety of highways which it has built...’ ” [Emphasis supplied]
In Warren v. Iowa State Highway Commission, 250 Iowa 473, 93 N. W. 2d 60, it was held that where a farmer’s home place and a 10-acre tract on a secondary road were located to the east of a national interstate and defense highway and her slightly larger tract used as a part of the same farming operation ivas located west of said highway oh the same secondary road, and the closing of the secondary road on either side of the highway required the farmer to travel a circuitous route over three miles in length to go from her home place to the other tract instead of a direct one-quarter mile route over the secondary road, and the farmer’s right of access to the secondary road was not affected and she had the same means of ingress and egress thereto as she had prior to the closing, farmer had no special damages and her injury, though greater in degree, was the same in kind as that suffered by the general public and was not compensable.
In Carazalla v. State of Wisconsin, 270 Wis. 593, 71 N. W. 2d 276, the court said, in discussing limited access highways and their effect upon abutting property owners: “If the abutting landowner’s access to the highway is merely made more circuitous, no compensation should be paid.” To the same effect is the case of Holman v. State, 97 Cal. App. 2d 237, 217 P. 2d 448, where the court said: “The facts pleaded herein show that the highway upon which plaintiffs’ property abuts is not closed and that plaintiffs, once on the highway to which they have free access, are in the same position and subject to the same police power regulations as every other member of the traveling public. Because of a police power regulation for the safety of traffic, they are, like all other travelers, subject to traffic regulations. They are liable to some circuity of travel in going from their property in a northerly direction. They are not inconvenienced whatever when traveling in a southerly direction frorq their property. The re-routing or diversion of traffic is a police power regulation and the incidental result of a lawful act and not the taking or damaging of a property right. . . .
‘ ‘ If the contention of the plaintiffs herein is sustained, the right of the State to control the traffic as a safety regulation would be definitely curtailed and traffic islands or double lines in the highway to separate through traffic would be prohibited. The damage of which plaintiffs complain would be the same if no division strip had been constructed on the highway in question but that double white lines had been painted on the highway and a ‘no left turn’ sign had been erected, or if the entire highway had been designated as a one-way street.”
In accord is People v. Sayig, supra [226 P. 2d 702].
Mere circuity of travel is not cause for damages. State v. Linzell, 126 N. E. 2d 53; People v. Schultz Co., 268 P. 2d 117; Blumenstein v. City, 299 P. 2d 347; State v. Fox, 332 P. 2d 943.
For all practical purposes, Iowa State Highway Commission v. Smith, 248 Iowa 869, 82 N. W. 2d 755, is directly in point with the case at bar. The Smiths owned property on both sides of Hubbell Avenue; their business was on one side of the street and their home was on the other. A controlled access highway was constructed and the property owners could no longer cross directly from their home to the place of business. The court said (p. 758): “Heretofore defendants could cross Hubbell Avenue by motor vehicle between their home and business properties by driving from 500 to 600 feet. "When the contemplated highway improvement is made they may cross only at East 38th or 42d Street. The increased distance in traveling from their home to place of business and back again will approximate a mile. In the future the residence property may be entered from the highway only when going east and upon leaving one must drive east as far as 42d Street. West bound travelers desiring to enter the residence property will be required to go west to 38th Street, make a U turn there and go back east to the driveway. ’ ’ In holding that the property owners suffered no compensable damages, the court said (p. 761): “We have no difficulty in disposing of defendants’ appeal from the part of the judgment holding the prohibition of crossing the highway, left turns and U turns except at designated points where there are no raised ‘jiggle’ bars does not constitute a taking of defendants’ property within the law of eminent domain. The law on this phase of the controversy seems to be thoroughly settled by many recent decisions and the judgment must be affirmed on defendants’ appeal.” Among the many eases eited by the court in support of its conclusion is City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S. W. 2d 187.
And finally we come to our case of Arkansas State Highway Commission v. Bingham, which is being handed down the same day as the case at bar. In nay opinion the two cases are in hopeless conflict. Mrs. Bingham owned valuable property. By reason of the construction of controlled access facilities, the value of the property was greatly depreciated. In that case this Court is holding that according to the great weight of authority, including decisions of this Court, Mrs. Bingham and her tenants have suffered no compensable damages. The decision in the Bingham case is sound and is supported by practically all of the authority on the subject. But in the case at bar, where Woollard has suffered damages because of the construction of controlled access facilities, he is permitted to recover a large sum as damages. (Woollard has suffered small damages compared to those suffered by Mrs. Bing'ham and her tenants.) There is no valid distinction between the two cases. Woollard is damaged because he cannot cross the center strip of the highway except at controlled points. Mrs. Bingham is damaged because people who would ordinarily patronize her service station cannot leave the center strip except at controlled points. In fact, there is a great deal more merit to Mrs. Bingham’s claim for damages than there is to the claim of Woollard. Woollard was actually paid for the damages he sustained by reason of the severance of his place. The law presumes that he was paid in full for all damages sustained. Mrs. Bingham has been paid nothing for the loss she has sustained by reason of the access facilities preventing the traveling public from conveniently reaching her property.
In the Bingham case to sustain the conclusion reached there are cited the cases of City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S. W. 2d 187; Muse v. Mississippi State Highway Commission, 103 So. 2d 839; State v. Linzell, 126 N. E. 2d 53; State v. Fox, 332 P. 2d 943; and Blumenstein v. City, 299 P. 2d 347. I submit that all of those cases support the view I have expressed in this dissent and do not sustain the finding of the majority in the case at bar.
In referring to what it would mean to sustain the same kind of contention that Woollard, the landowner, makes in the ease at bar, Clarke on The Limited-Access Highway, supra [27 Wash. L. Rev. Ill], says: “It would mean in effect that every abutter could demand an opening through the central median or dividing strip both between the outer highway and the through-traffic lanes, and through the center dividing strip of the through lanes. It is obvious that such concession to abutters would defeat the underlying purpose of the limited-access facility. Yet the only alternative under' such a rule of law is payment of . . . tribute by the public to adjacent owners. This tribute could be so great in the aggregate that the cost of freeways would, in fact, be prohibitive.” And Covey on. Highway Protection Through Control of Access and Roadside Development, supra [1959 Wisc. L. Rev. 567, 581], has this to say: “Further, as a matter of practice, if the state must build a service road and compensate the abutter for being placed on it, the highway commission will not build such auxiliary facilities. ” As it now stands, the Highway Department can hardly hope to build a modern highway system because of the large damages it will have to pay to every property owner who has had his property severed and is prevented from crossing the right of way at just any point he may choose, and it is fairly certain that in other cases the cost will be heavy, as it is in the ease at bar.
For the reasons set out herein, I respectfully dissent.