Daily Development for Wednesday, November 12, 2008
by:
Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of
Law
Of Counsel: Husch Blackwell Sanders
Kansas City,
Missouri
dirt@umkc.edu
EMINENT DOMAIN; INVERSE CONDEMNATION; ACCESS:
Although an inverse condemnation may lie for partial but material obstruction of
access to a public highway, no damages will lie for alteration of traffic
patterns on the highway, even though the net effect of access to landowner’s
premises is effectively the same.
State v. Dunn, 888 N.E.2d 858 (Ind.App.
2008).
Dunn owned a hotel property that had access, via a service road,
to and from the northbound and southbound lanes of Green River Road. The State
elected to restrict access to Green River Road and erected a concrete median in
its center, thereby preventing southbound traffic from making left turns into
the service road entrance to the property. Without the median, southbound
traffic would cross over five lanes of northbound traffic to turn onto the
service road. Following the change, southbound traffic had to follow a
circuitous route to reach the service road.
Dunn filed an inverse
condemnation action against the State, claiming that installation of the median
completely eliminated access to the property from the southbound lane of Green
River Road, thereby substantially and materially impairing vehicular access to
the property so as to constitute a taking of property without just
compensation.
The State contended that Dunn was not entitled to
compensation as a matter of law because the State installed the median under its
police powers and it does not constitute a compensable taking. Both parties
filed motions for summary judgments. The trial court held for Dunn, finding that
a taking had occurred. A jury awarded damages in the amount of $3,650,000, and
the trial court awarded an additional $1,049,600 in prejudgment interest, $109
in costs, and $25,000 in attorneys' fees. On appeal, the Court of Appeals of
Indiana reversed, holding that the median affected traffic flow, rather than
ingress and egress, and therefore did not constitute a compensable
taking.
The case was decided under the Indiana Code provision that allows
an inverse condemnation claim where a person's property has been requisitioned
for public use without the procedures of eminent domain.
The threshold
question in such a claim is whether the plaintiff landowner has a property
interest in the property that has been acquired by the State. As defined in
State v. Ensley, 164 N.E.2d, 348-49 (1960), the leading case on the issue,
"Property in its legal sense means a valuable right or interest in something
rather than the thing itself, and is the right to possess, use and dispose of
that something in such a manner as is not inconsistent with the law." This right
includes a right of ingress and egress.
Although a property owner has an
easement of ingress and egress in an abutting public highway that cannot be
taken without compensation, the Indiana Supreme Court held that a taking does
"occur where ingress and egress is made more circuitous and difficult" because
there is no property right to the free flow of traffic past a property. Town
Council of New Hampshire v. Parker, 726 N.E.2d 1217 (Ind.2000). Where there has
been an interference with the right of ingress and egress itself, a claim is
compensable if that right has been "substantially or materially interfered with
or taken away." It is insufficient that state action created a partial
limitation or obstruction.
Based on this holding, claims are
distinguished into two types: those alleging damages resulting from an
alteration in traffic flow do not result in a cognizable claim, while those
alleging interference with the right to ingress and egress may result in a
compensable claim if such interference is substantial or material.
Here,
Dunn's claim fell within the first line of cases. The court expressly rejected
Dunn's claim that the degree of damages suffered by the business is relevant to
determination of which type of claim he is making. In essence, it concluded,
Dunn was claiming a right to the free flow of traffic to his property. This, as
noted, was not a protected right.
Comment: This is the first time
the editor has encountered the stated distinction between traffic flow and
actual access to property. Thus, the editor has not thought before about
the question of whether the obstruction of traffic flow ought to be compensable
as a taking of access if the net effect is to render the business operations on
plaintiff’s property significantly less valuable.
The editor is
symphathetic with the notion that “the line must be drawn somewhere” and that it
is quite difficult to judge the net effect of traffic flow modifications on
access, and consequently on value. For some purposes, elimination of cars
crossing five lanes of traffic to reach one’s premises might render the premises
more valuable.
In any event, compensation for partial interference
with access already is an uphill argument, and the editor isn’t surprised that
parallel arguments are blocked completely.
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