Daily Development for Wednesday, February 9, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

EMINENT DOMAIN; DAMAGES; EASEMENTS: The taking of adjacent property over which an access easement runs will not give rise to compensation if the property served still has "reasonable," but less convenient access to the destination served by the easement, at least when the destination is a public highway..

State of New Jersey v. Dikert, 319 N.J. Super. 310, 725 A.2d 119 (App. Div. 1999).

Two property owners had the right to use an easement that ran from a public highway across neighboring land to their own property. A portion of the neighboring property owner's land was condemned in connection with a highway improvement project. The two property owners filed a claim alleging that the condemnation of their neighbor's property severed the access easement serving their properties, thereby obligating the condemning authority to pay just compensation. They also asserted that the construction of a service road would result in an inverse condemnation of their property by destroying its aesthetic value.

The lower court concluded that the two property owners failed to set forth any facts warranting relief. It stated that in taking the easement, the condemning authority had provided the landowners with a reasonable alternative route to the highway and thus they were not entitled to compensation for the condemnation of a portion of the access easement. The lower court also ruled that the property owners' other claims involved tort actions, not matters of inverse condemnation.

Upon review, the Appellate Division pointed out that cases dealing with the impact of eminent domain on easements generally involve situations where: (1) the servient tenement, including an easement, is taken, precluding the dominant tenement on adjacent land from utilizing the easement; or, (2) the taking is of an access easement utilized by the owner of property abutting a highway.

The first category of cases refers to situations where land burdened with an easement is taken by eminent domain, and the owner's measure of damages is the market value of the land as affected by the easement. The easement attaches to the land of the owner of the dominant fee and is appurtenant to its land, and must be valued with reference to it and not as though the easement constituted a separate property. In such a case, the owner of the dominant estate must be compensated for the value of the easement taken from it; the measure of damage is the difference between the market value of the dominant estate with the easement and its value without it.

Under the second category of cases, a "preexisting easement of access to and from a public highway, possessed by an owner of land abutting on such highway, constitutes a right of property in which he cannot be deprived without just compensation." Although a property owner may not be shut off from access to its land, there is a qualification to the usual principle of compensation. Where a reasonably suitable alternative means of access remains, compensation is not required because reasonable highway regulation will not give rise to a compensable taking. "Limitation of access, so long as reasonable access to the highway system remains, is not a taking by eminent domain, but is accomplished under the police power, and not compensable." Moreover, the use of a more circuitous route does not necessarily constitute a compensable taking of property.

In this case, there was a combination of both categories. Although the State condemned the easement that had been reserved in the grant to the servient tenements that benefitted the two properties, by giving the two properties reasonable alternative means of access in place of the easement, no compensation was required.

With respect to the claim for compensation based on the change in the character of the land, the general rule is that acts done in the proper exercise of governmental powers, or pursuant to authority conferred by a valid act of the legislature, and not directly encroaching on private property, do not constitute a taking even though their consequences may impair the land's use or value. "New Jersey follows the rule that ordinary losses or damages consequential to a taking, such as loss or destruction of good will, loss of profits, inability to relocate, and frustration of an condemnee's plans are too remote and uncertain to measure accurately," and hence, are not compensable. Consequently, the Appellate Division upheld the lower court's dismissal of the claims.

Compare: Union Elevator & Warehouse Company, Inc. v. Washington State Department of Transportation, 972 P.2d 495 (Wash. App. 1999), the DD for August 27, 1999, which held that A nonabutting property owner has a claim for damages for loss of ingress and egress if it can prove that its reasonable means of access have been obstructed and that it suffered special damage, different in kind and not merely degree, from that sustained by the general public, even if it still has some alternate means of access to its property.

Comment: Isn't there at least a technical difference between the removal of a general right of access to a public road implicitly granted to all abutting landowners and the taking of a specific easement across private property? Even though a dominant landowner may have had alternate access that a court would deem a "reasonable alternative," it may have elected to seek improved access through the acquisition of a specific easement. To the extent that the market value of the dominant tenant's property is reduced by the loss of this more convenient easement, why shouldn't there be compensation payable?

Had the easement been an access to any destination other than a public way, one suspects that the court would have acknowledged that diminution in value resulting from the loss of the easement was compensable, even where there was an alternate, less convenient, route. Why not apply the same test here?

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