Daily Development for Thursday, August 26, 1999

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

EMINENT DOMAIN; ACCESS:  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.

Union Elevator & Warehouse Company, Inc. v. Washington State Department of Transportation, 972 P.2d 495 (Wash. App. 1999).  

A grain elevator company brought a claim for inverse condemnation when the Washington Department of Transportation closed a highway which did not immediately abut the elevator, but the closure of which significantly increased the length of time and difficulty involved in reaching the elevator via a circuitous alternate route. The trial court entered summary judgment for the Department.

The appellate court reversed, holding that a remote property owner has protected access rights, despite the fact that the applicable statute provides protection only for "abutting" owners. The court seemed to conclude that a landowner is "abutting" if its land abuts a street that is part of a network in which access is impaired, even though not abutting a street affected by the highway construction project in question.

The Department further argued that the landowner still had direct physical access to its property. The court held that whether the degree of impairment was such as to render the property substantially diminished in value was a question of fact for the jury. The real problem appeared not to be the increased distance, but rather the fact that the new access required several sharp turns and steep grades, difficult to negotiate in heavily loaded grain trucks.  

The court stated that the test is whether the landowner can show impairment of its access which is different in kind and not merely degree from that of the general public. It commented that a property owner is entitled to damages even though access to its property remains, if that access has been so substantially impaired as to meet this standard. The court remanded for trial, with directions that the case be given to the jury with an instruction that the issue of remaining access be determined on the basis of reasonableness, adequacy and commercial practicality.

Comment: The court emphasized the fact that the grain elevator operator was in a heavily competitive business, where the season is short and easy access is vital. Longstanding customers of the elevator testified that, even though they had been able to negotiate physically the new route to the elevator, they were now going to competitors, because the route was dangerous and difficult.

Looked at from the perspective of the real economic injury to the grain elevator operator, the case seems open and shut. But eminent domain cases don't always rest on issue of "real" economic injury. There are many cases in which access to roadside convenience facilities have been substantially diminished, leading to huge losses in business and ultimately to wipeout due to more convenient competitors rising up at the relocated intersection, and courts have dismissed those cases because access, although inconvenient, remained.

Consequently, this case may prove very valuable for future plaintiffs. Although probably not one of a kind, it is useful in that it demonstrates that the trier of fact should look at the competitive marketplace in determining whether the proferred access is reasonable. These competitive factors, of course, can also be used to demonstrate why the plaintiff is affected differently from other road users.

 Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 16, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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