HIGHWAY RESEARCH BOARD Bulletin 77

LIBRARY % NOV 2 11957

7'GHrm RESEADGI

RIGHT-OF-WAY PROBLEMS

National Academy of Sciences- National Research Counci

publication 275 HIGHWAY RESEARCH BOARD

1953

R. H. BALDOCK, Chairman W. H. ROOT, Vice Chairman

FRED BURGGRAF, Director

Executive Committee

THOMAS H. MACDONALD, Commissioner, Bureau of Public Roads^

FRANCIS V. DUPONT, Commissioner, Bureau of Public Roads''

HAL H. HALE, Executive Secretary, American Association of State Highway Officials

LOUIS JORDAN, Executive Secretary, Division of Engineering and Industrial Research, Natumal Research Council

R. H. BALDOCK, State Highway Engineer, Oregon State Highway Commission

W. H. ROOT, Maintenance Engineer, Iowa State Highway Commission

FYKE JOHNSON, President, Automotive Safety Foundation

G. DONALD KENNEDY, Vice President, Portland Cement Association

BURTON W. MARSH, Director, Safety and Traffie Engineering Department, American Auto• mobile Assodaiion

R. A. MoYER, Research Engineer, Institute of Transportation and Traffic Engineering, University of California

F. V. REAGEL, Engineer of Materials, Missouri State Highway Department

K. B. WOODS, Associate Director, Joint Highway Research Project, Purdue University > Resigned March 31, 19S3. •ECFective April 1, 1943.

Editorial Staff

FRED BURGGRAF W. J. MILLER 2101 Constitution Avenue, Washington 25, D. C. The opinions and conclusions expressed in this publication are those of the authors and not necessarily those of the Highway Research Board. HIGHWAY RESEARCH BOARD Bulletin 77

Right-of'Way Problems

PRESENTED AT THE Thirty-Second Annual Meeting January 13-16, 1953

1953 Washington, D.C. DEPARTMENT OF ECONOMICS, FINANCE AND ADMINISTRATION

H.S. Fairbank, Chairman Deputy Commissioner Bureau of Public Roads

COMMITTEE ON LAND ACQUISITION AND CONTROL OF HIGHWAY ACCESS AND ADJACENT AREAS David R. Levin, Chairman Chief, Land Studies Section Financial and Administrative Research Branch Bureau of Public Roads

Frank C. Balfour, Chief Right-of-Way Agent, California Division of Highways T. L. Dickson, Director of Public Works, San Antonio, Texas ""H. E. Hilts, Deputy Commissioner, Programs and Design Division, Bureau of Public Roads Theodore M. Matson, Director, Bureau of Highway Traffic, Yale Uni• versity H. J. Neale, Landscape Engineer, Virginia Department of Highways K. B. Rykken, Special Assistant to the Executive Vice-President, Ameri• can Automobile Association Flavel Shurtleff, Counsel, American Planning and Civic Association, Marshfield Hills, Massachusetts

•Deceased September 5, 1953

11 Foreword

IT is the purpose of this 1952 annual report of the Committee on Land Acquisition and Control of Highway Access and Adjacent Areas, as in past years, to present significant developments in the diverse fields of the Committee's in• terest. Sections on land acquisition, control of the road• side, control of highway access, and parking are included, as well as papers presented at the open session of the com• mittee during the annual meeting of the Board in January 1953. Since many of the materials included may not be available elsewhere in printed form, this bulletin may serve as a source book of information to those interested in the fields covered.

iii Contents

FOREWORD iii

REPORT OF COMMITTEE ON LAND ACQUISITION AND CONTROL OF HIGHWAY ACCESS AND ADJACENT AREAS David R. Levin, Chairman 1

LEGAL ASPECTS OF LIMITING HIGHWAY ACCESS Harry B. Reese 36

METHODS USED TO PROTECT, RESERVE, AND ACQUIRE RIGHTS-OF-WAY FOR FUTURE USE IN MARYLAND LeRoy C. Moser 51

RESERVING LANDS FOR STREET AND HIGHWAY IMPROVEMENTS R. B. Sawtelle 60

IV Report of Committee on Land Acquisition and Control of Highway Access and Adjacent Areas

DAVID R. LEVIN, Chairman Chief, Land Studies Section, Financial and Administrative Research Branch Bureau of Public Roads

• THE broad pattern of the committee's Acquisition and Control of Adjacent Area," activities during 1952 repeats that of the Highway Research Board. preceding year. This report calls atten• tion to some of the important work done LAND ACQUISITION by the committee during the year, with particular emphasis on the study of ways Reservation of Highway Right-of-Way Prior and means of reserving highway right-of- to Acquisition way prior to acquisition, a major under• Work on the second phase of a major taking of the committee. project of the committee, the study of ways Among other activities of the committee and means of reserving land for highway are its interest in a legal research project right-of-way prior to acquisition,' contin• at the College of Law, Ohio State Uni• ued during 1952. This phase contemplates versity, on the subject of public control a study of existing legal or administrative of highway access: cooperation with the measures authorizing reservations of land American Bar Association in a project at the state level. All states which were involving legal, administrative and eco• known to have used some one or more nomic phases of the parking problem; and methods to accomplish this purpose were cooperation with the Highway Research contacted and a number of replies were Board Committee on Roadside Development received indicating a fair amount of suc• in a study of various phases of the problem cess with methods used. Of particular of roadside control. value were replies received from Mary• Although no startling amount of legisla• land and Wisconsin, in each of which an tion in the fields of the committee's ac• awareness of the problem, ^propriate tivities was enacted during the year, due enabling legislation and the cooperation perhaps to the fact that most state legisla• of local governmental units have seem• tures did not meet in regular session in ingly combined to produce some accom• this off-year, a number of what might be plishments of note. For this reason, it termed progressive court decisions, from seemed appropriate to have LeRoy C. the committee's viewpoint, were handed Moser, right-of-way engineer of the down. Others, not so favorable, pointed Maryland State Roads Commission, and up the need for new legislation in these R. B. Sawtelle, right-of-way engineer fields, and i^ is hoped that accomplish• of the Wisconsin State Highway Com• ments in the legislative field during the mission, address an open session of the regular sessions of 1953 will be sub• committee at the Thirty-Second Annual stantial. Meeting of the Highway Research Board. In this connection, a most-significant Both Moser's paper, "Methods Used to project is being sponsored by the Highway Protect, Reserve and Acquire Rights Research Board, comprising an analysis of Way for Future Use in Maryland," of all state statutes pertaining to streets and Sawtelle's paper, "Ways and Means and highways, with a view to developing of Reserving Lands for Street and High• recommended legislative guides for the way Improvements," are reproduced in states. this bulletin. Both papers contain ex• cellent accounts of the two states' ex- The 1951 annual report of the committee and special papers were published in 'See "Land Acquisition and Control of Adjacent Areas," High• November 1952, as Bulletin 55, "Land way Research Board Bulletins 38 and 59 for previous reports on this project. perience. Both might be helpful to other first instance, the court stated, the com• states as examples of what can be done mission obviously hoped to avoid the ex• without drastic legislative changes. pense incident to any attempt to enlarge The committee hopes to complete a a roadbed that had been hemmed in by report on this project during the coming various commercial establishments that year. tend to spring up along the border of a Where sufficient funds are available, public highway. The supreme court found the most-practical method of providing it evident that the present undertaking land for future highway improvements would not have been necessary had the IS by purchase or condemnation. In ad• state taken a sufficiently wide easement dition to lack of funds, an obstacle to this when the original road was constructed. line of attack, in a number of states, is Under the circumstances, said the court, lack of specific statutory authority to ac• it was certainly permissible for the com• quire land for future use. Determination mission to look ahead in its planning. of the state's rights in this respect have In this case, also, the landowners dis• been generally left to judicial determina• puted the highway commission's authority tion. Decisions were handed down by the to reroute the highway in such a manner as courts during the year, upholding the to bypass the three towns of Jericho, state highway department's right to ac• Clarkedale, and Turrell, since these three quire sufficient right-of-way for future communities were shown on the map that use in Arkansas and Mississippi. the legislature adopted as the basic state 1. Arkansas. The Arkansas case highway system. The court disagreed with (Woollard et al. v. Arkansas State High• this contention, however, since the com• way Commission, 249 S.W. (2d) 564, mission had statutory authority "to make, June 9, 1952) came before the state's from time to time such necessary changes supreme court on appeal from a judg• and additions to the roads designated as ment of the Chancery Court of Critten• state highways as it may deem proper." den County, denying an injunction asked (Arkansas Stats. 1947, Sec. 76-501.) for by 20 landowners and the town of Tur- In a previous decision. Bonds v. Wilson, rell to enjoin the state highway com• et al. 284 S. W. 24 (1926) the court had held mission from relocating a 12-mi. segment that changes in the system, however sub• of US 61. The new highway, lying west of stantial, were not prohibited as long as the existing road, would bypass the three a particular unit of the system was not towns of Jericho, Clarkedale, and Turrell. eliminated as a whole. The section of US Plans for the relocated highway includ• 61 now in question could hardly be said to ed a 250-ft. right-of-way, but the highway constitute a unit in the system. Under the commission proposed to build only a 24-ft. decision in the Bonds case, the com• highway in the immediate future. Plans mission's action in moving a 12-mi. seg• for the future, when justified by available ment of the highway westward for about a funds, included a second two-lane road, mile did not have the effect of eliminating separated from the first by a parkway. a unit in the highway system, and was The landowners contended that even a therefore permitted by the statute. four-lane highway could be built on a The decision of the lower court was right-of-way not exceeding 100 ft in thus affirmed. * width. The state highway commission, 2. Mississippi. The Mississippi deci• however, offered testimony by experi• sion (Erwin v. Mississippi State Highway enced engineers to the effect, that a 250- Commission, 58 So. (2d) 52, April 14, ft. right-of-way was needed in this in• 1952) reached the state supreme court upon stance. The supreme court stated that appeal by a landowner whose request for unless evidence of fraud, bad faith, or an injunction restraining the state highway gross abuse of discretion could be proved commission from condemning certain by the landowners, the determination of parcels of his land was refused by the the state highway commission would be Chancery Court of Lauderdale County. accepted by the courts, and found the The landowner protested that there was lower court correct in holding that the "no present public necessity" for the commission's decision was not arbitrary taking of several of the parcels involved. or capricious. 'See Memorandum 59, September 1992, Committee on Land Acquisition and Control of Highway Access and Adjacent Areas, By taking a broad right-of-way in the Highway Research Correlation Service, Circular 172 He contended that the highway commission case. " (18 Am. Jur., Eminent Domain, admittedly had no immediate use for these Sec. 107.) parcels, but was seeking condemnation In this case, the state's supreme court thereof with the view to holding the same stated, no averments of fraud or abuse of until some distant date, then to be used, discretion were presented which would if at all, as the site of a so-called clover- warrant injunctive relief. The highway leaf at the intersection. Erwin stated commission, in exercising its power of that he had been advised that plans for the eminent domain, must meet not only cloverleaf were contingent upon sufficient present needs but also those which might funds being accumulated for that purpose be reasonably anticipated in the future. out of the pay-as-you-go highway construc• The lower court was correct in refusing tion program in effect in the state, and that to issue the preliminary injunction re• the time for constructing the cloverleaf, straining the commission from proceed• if at all, was most mdefinite. He con• ing with its eminent domain isuit. tended that the state's power did not in• clude the power to take private property Right of Immediate Possession in the hope of putting it to public use at some indefinite and uncertain date in the In order to facilitate the construction of future, if ever, thus depriving the owner badly needed highway improvements in of the use and enjoyment thereof during a recent years, a number of state legisla• period of years when no public use was tures have authorized the state highway being made of the property. departments to take possession of land The landowner further asserted that the needed for these improvements at some parcels involved constituted a desirable point prior to completion of condemna• business property which, because of the tion proceedings, in cases where agree• location at the junction of the two high• ment between the state and the landowners ways, had a great potential earning ca• cannot be reached. These laws vary from pacity. If the state were permitted to that of New York, where possession may take the property and hold it in idleness be taken upon the filing of plans showing over a period of several years, the loss the proposed improvement, to that of in earnings from the property during such Louisiana, where appraisers appointed period could easily exceed any amount by the court must make a report and a which might be considered as represent• court hearing be held thereon before ing a present reasonable value for it. possession may be had. The owner asked that the defendant be An important decision was handed enjoined from abusing its power of con• down during the year by the Florida State demnation in any such manner. Supreme Court, upholding the constitu• The court answered that the state high• tionality of the state's Declaration-of- way commission was vested by statute Taking Act (State Road Department v. with broad discretion in selecting its routes Forehand et al., 56 So. (2d) 901, Feb• and other details. There was no indica• ruary 12, 1952.) tion that the legislature intended to make The Florida law, here under question. necessity a general judicial question in Chapter 74, Florida Statutes Annotated, limiting the commission's authority to the 1949, provides a method of obtaining pos• taking of such property as was "needed" session of property for public purposes or "necessary. " In this connection, the pending condemnation proceedings. Nec• court quoted an eminent authority as fol• essary steps in the procedure authorized lows: "On the other hand, it has been held include the filing in the appropriate court that the mere fact that the statute gives of a declaration of taking which must the corporation making the taking power contain in detail: (1) the authority and to take land 'necessary' for its purposes purpose for which the lands are taken: does not give the court any greater power (2) a complete description and estate to review the question of necessity than or interest held by the owner in the lands: when the grant of power is not so limited, (3) the last preceding assessment for since the grantee of the power is the pri• state, county, and municipal taxes: and mary judge of the necessity* and the right (4) a statement of the sum estimated to be of the court to review its decision in case "See Memorandum 60, October 1952, Committee on Land Acquisition and Control ol Highway Access and Adjacent Areas, of bad faith or abuse is the same in either Highvay Research Correlation Service, Circular ITS just compensation for the land taken. The court further called attention to the In addition to the filing of the declara• fact that the Florida declaration-of-taking tion of intention, the law requires that a act was almost identical with the federal hearing be conducted, notice of vAiich must statute designed for the same purpose which be given all interested parties. At such had been repeatedly upheld by the federal hearing, appraisers appointed by the court courts. must present their report and all interested In conclusion, the court had a most- parties may be heard, represented by coun• liberal discretion in protecting the rights sel if desired. If the court finds that the of the parties to the cause and might require petitioner is entitled to use of the property a deposit of the petitioner before taking before final judgment, a deposit of double possession that was ample to secure the the value fixed by the appraisers must be value of the lands, attorneys fees, maps, made in court before possession is had. photographs, drawmgs or checks that might In June of 1951, the Florida Road De• be essential to establish value. In any partment instituted condemnation proceed• condemnation proceeding a jury of 12 men ings against one, W. C. Forehand, and was required, and the court had ample others and filed a declaration of taking as power to consider every element of value authorized by the above procedure. After that would be submitted to a jury in ad• process was served on the defendants and judicating the amount of the deposit as a appraisers were appointed, defendants prerequisite to taking possession. This moved to dismiss the declaration of taking, was all the constitution required. * challenging the constitutional validity of Several other court decisions on matters the procedure. pertaining to the taking of possession of The question involved, stated the court, highway right-of-way prior to the comple• was whether of not the declaration-of- tion of condemnation proceedmgs are of taking procedure ran afoul of Section 12, interest. Two of these involved the pay• Declaration of Rights, or Section 29, Ar• ment of interest to landowners whose land ticle XVI of the State constitution. The had been taken by the state for highway pur• applicable portion of Section 12 is as fol• poses. lows: "nor be deprived of life, liberty, or 1. Oregon. In a decision handed down property, without due process of law; nor by the Oregon Supreme Court, (State et al. shall private property be taken without V. Deal et al., 233 P (2d) 242, June 27, just compensation." Section 29, Article 1951) it was held that owners whose land XVI, is as follows: "No private property was taken by the state m condemnation nor right of way shall be appropriated to action were entitled to interest at the legal the use of any corporation or individual rate of 6 percent per annum from the day until full compensation therefor shall be of taking on whatever sum the jury found first made to the owner, or first secured to be fair market value of the property to him by deposit of money; •which compen• taken. sation, irrespective of any benefit from any In this case, a lower court awarded improvement proposed by such corporation damages in the amount of $7,500 for land or individual, shall be ascertained by a taken by the state highway commission to jury of twelve men in a court of competent form a part of a relocated section of the jurisdiction, as shall be prescribed by Oregon Coast Highway in Lincohi County. law." The matter of interest was not brought up The court found that the declaration-of- during the trial, but subsequent thereto, taking procedure might be construed to upon motion of the defendant property meet the requirements of either provision owners, the court entered judgment for of the constitution. In the execution of pub• them in the amount of the verdict, together lic contracts for roads, streets, public with interest at the rate of 6 percent per buildings and other public projects it was annum from the date of commencement of often highly important to acquire the use of the action and of the takmg. The state, in lands on short notice. The enabling statute an appeal from the verdict of the lower here under discussion provided nothing court, argued that in thus amending the more than a summary process for doing verdict the court exceeded its authority, this in order that urgent public projects might proceed while the act of condemna• ^ee Memorandum 55, May 1952, Committee on Land Acquisi• tion and Control of Highway Access and Adjacent Areas, High• tion was being carried out. way Research Correlation Service, Circular No 162 and with this the supreme court agreed. the state, when acting through the state The case was remanded for further pro• highway commission, provided that "ex• ceedings, on the basis of this and other as• cept as otherwise provided herein such signments of error. Since the higher court action or proceedmg shall be commenced felt the issue would arise in another trial, and prosecuted to final determination in it expressed its views on the matter. the same manner as an action at law." The constitution of the State of Oregon Also, "the defendant in his answer may provides that private property shall not be set forth any legal defense he may have taken for public use without just compen• to the appropriation of such lands or any sation, which provision is similar to that of portion thereof, and may also allege the the Constitution of the United States,which true value of the real property and the states "nor shall private property be taken damage resulting from the appropriation for public use without just compensation." thereof." (Sections 100-116 O.C.L.A., In construing this provision of the United as ammended by Ch. 283,Oregon Laws States Constitution, the United States Su• 1947.) preme Court had held, "It is settled by The court stated that an orderly pro• the decisions of this court that just compen• cedure under such a statute would indicate sation is the value of the property taken at the propriety of the defendants alleging all the time of the taking. And, if the taking the damages which they claimed. The precedes the payment of compensation, the court was not prepared to say that the de• owner is entitled to such addition to the fendants would waive their claim to interest value at the time of the takmg as will pro• should they fail to plead it, but felt it would duce the full equivalent of such value paid be at least their duty to call the matter to contemporaneously. Interest at a proper the attention of the court and request an rate is a good measure of the amount to be instruction upon it, so that the jury might added." (Brooks-Scanion Corp. v. United find the fair cash market value of the land States, 265 U.S. 106, 44 S. Ct. 471, 474, plus interest thereon at the legal rate from 68 L. Ed. 934 (1924).) In this and other the day of taking.' cases cited, the proper rat6 of interest 2. Utah. In an appeal from a decision was held to be the legal rate prevailmg of a lower court, awarding the owners of in the jurisdiction where the land was lo• land taken by the state roads commission cated. The Supreme Court of West Vir- for highway purposes mterest at the rate gmia, in Simms v. Dillon, 119 W. Va. of 8 percent from the date of the order of 284, 193 S. E. 331, (1937) on the basis of immediate possession, the Utah State Su• the United States Supreme Court Decisions, preme Court held that the condemnee was held that denial of the right to interest entitled only to interest at the legal rate would be a violation of the fourteenth (6 percent). (State By and Through Road amendment to the federal constitution. Commission et al. v. Danielson et al., Supporting authorities included 1 Nichols 247 Pac. (2d) 900, September 15, 1952.) on Eminent Domain (2ded.) 653, Sec. 216; 2 Lewis, Eminent Domain (3ded.) Both parties were in agreement that the 1320, Sec. 742; 18 Am. Jur., Eminent property owners were entitled to interest Domain, Sec. 272. The Oregon Supreme from the date of the order of immediate Court held that the defendants were entitled possession. State statutes on eminent do• to interest at the rate of 6 percent per an• main did not state the rate of interest al• num from the day of takmg. lowable to the condemnee, but under the general subject of interest, Title 44, Utah The state contended that interest could Code Ann. 1943, there appear the following not be recovered m any event unless de• sections: manded in the property owners' answer. Sec. ^^-0-1 The legal rate of interest for Defendants held that since mterest is a the loan or forbearance of any money, goods or part of just compensation under the cons• things in action shall be six percent per annum. titution and they were entitled to it as a Sec. 44-0-4 Any judgment rendered on a matter of right, it would have been the lawful contract shall conform thereto and shall bear the interest agreed upon by the parties, duty of the court to allow it, even though which shall be specified in the judgment: other they had made no appearance whatever. judgments shall bear interest at the rate of However, the supreme court called at• eight percent per annum. tention to the fact that the Oregon statute "See Memorandum S3, March 19S2, Committee on Land Acqui• governing procedure in condemnation by sition and Control of Highway Access and Adjacent Areas, High• way Research Correlation Service, circular No. 158 6

The land owners contended that while tech• titution requires the payment of compensa• nically an order of occupancy was not a tion or the deposit thereof before the taking judgment m the usual sense, it was akin to of private property for a public use in all a final judgment, inasmuch as it might be cases except where such property is taken said to establish the public character of the in time of war or for the purpose of making use, the necessity for condemnation and the or repairing roads. In a previous de• amount of land required, leaving for future cision, Pontiac Improvement Company v. determination only the amount of the dam• Board of Commissioners of Cleveland, ages. The supreme court, however, held, 135 N.E. 635, (1922), the Supreme Court in Ime with a previous decision (Utah Copper of Ohio declared that the phrase "where Co. V. Montana - Bingham Consolidated private property shall be taken for public MiningCo., 255 P. 672, 1926) thatanorder use" implied possession, occupation, and of immediate occupancy was nothing more enjoyment of the property by the public, or than an interlocutory order. "Until such by public agencies, to be used for public time as damages are determined," said purposes. the court, "it is clear that there is no Section 1178-37 of the Ohio General judgment which will bear mterest withm Code, authorizmg the director of highways the meaning of. Sec. 44-0-4." to appropriate property for highway pur• Thus, Sec. 44-0-4 did not apply, and poses, specifies that upon the filing of the there was no constitutional or statutory resolution or finding and the deposit of the provision prescribing the rate of interest amount which the director deems due to to which a condemnee was entitled from the the landowner for compensation and dam• date his property was taken by emment ages, if any, the director may take pos• domain proceedings until the date of the session of the property. Appellants argued award of damage's. Under such circum• that the taking in this case occurred at the stances, the court stated, it was generally time the director of highways filed his recognized that the condemnee was en• resolution or finding; that the right of entry titled to interest at the legal rate, citing upon the premises subject to appropriation previous decisions to this effect. Since the accrued to appellee contemporaneously legal rate of interest m the state for the with the filing of said resolution and find• forbearance of money was 6 percent, the ing, and that this right of entry alone was trial court erred in allowing the landowners equivalent to the taking of private property interest at the rate of 8 percent, and its for public use. This contention the court judgment should be modified accordingly.' considered rebutted by other provisions of 3. Ohio. Another important decision, the statutes. ostensibly concerning the date of taking of Section 1178-38 prescribes the manner the property involved, but which actually for appeal by the property owner and fur• resulted in clarification of the state's ther provides that the right to take pos• authority to take immediate possession of session shall not be affected by the filing land, was handed down by the Ohio Court of a petition in error as done in this case. of Appeals in October 1952. (Appeal of The section also authorizes the state to Stickels et al., 104 N. E. (2d) 186.) abandon appropriation proceedings at any Floyd S. Stickels and other property time not later than 30 days after fmal de• owners from whom land was being taken termination of the cause, if the property argued, among other things, that a lower appropriated has not been occupied or court erred m charging the jury that the changed. This last provision, the court verdict must be based upon the value of stated, indicated that the director of high• the property at the time the property was ways might or might not take possession taken, which was the time of trial, and of the premises subject to appropriation in refusing to instruct that the time of prior to the trial and was indicative of the taking was actually the date when the pro• legislative intent that the "taking" does ceeding was instituted. The state did not not occur until after the property subject actually enter upon the premises or take to appropriation had actually been occupied over physical possession prior to the trial. by the state. Article I, Section 19, of the Ohio cons- Another section of the statutes, 1178- "See Memorandum 62, December 1952, Committee on Land 39, provides that when a building or other Acquisition and Control of Highway Access and Adjacent Areas, structure is situated upon the land appro• Highway Research CorreUtion Service, Circular No 182 priated for any highway improvement, the jury, in assessing compensation to any Although no objection had been made to owner of the land, shall assess the value the turnpike commission taking possession thereof, exclusive of the structure, and of the land afterpayment of the $650 dam• make a separate finding of the value of ages awarded by the condemnation commis• the structure and the title to said structure sioners, after the jury awarded the larger shall vest in the state, with the right to amount, the landowners refused to surrend• enter upon the site of said structure for er possession. An injunction was sought the purpose of removing said structures by the turnpike commission and a tempor• therefrom. ary order was issued restraining the land• This last section the court interpreted owners from interfering with plamtiff's as meaning that there could be no taking possession and right of possession. Plain• of property by the director of highways tiff's request for anew trial was denied, when buildings or other structures were and appeal was taken. The temporary re• situated thereon until the jury had as• straining order was continued, but the lower sessed the value thereof. This, the court court announced that unless the additional felt, would protect the interests of the sum of $1,350 was paid into court, the ap• landowner m that the structures situated plication for injunction would be dismissed upon the land could not be removed prior and the right of possession denied. The to trial and view of the premises by the turnpike commission sought to prohibit any jury. In the present case, a number of such action in the trial court. structures were situated upon the land in The state's supreme court could find no question. Accordingly, the title to the statutory provision to the effect that pos• structures would not vest in the state, session taken by the turnpike commission nor would the state have the right of en• need be vacated if jury trial resulted m try for the purpose of removal thereof assessment of a higher damage sum, as until after the award had been determined. precedent to an appeal from such jury The court concluded that the law of verdict, nor any authority requiring that Ohio was to the effect that the takmg oc• the commission, after having made the curred at the time the condemnor took original deposit, must deposit the addi• possession of the property appropriated, tional sum awarded by the jury as a con• or alternatively, at the time of the trial in dition precedent to preserving its possess• the absence of prior subjugation of the ion pending appeal. The turnpike authority property by the condemnor to possession, had statutory authority to resort to con• occupancy and enjoyment of use.'' demnation and to take possession upon 4. Oklahoma: In a final case (Oklahoma payment of the award made by condemna• Turnpike Authority v. Byrum, 244 P. (2d) tion commissioners. 1145, May 13, 1952) the Oklahoma State 69 Oklahoma Statutes 1951, Sec. 46 Supreme Court held that the turnpike (6) refers to the payment to be made by the authority might appeal a jury verdict with• condemnor as the award of commissioners, out surrendering possession of the prem• or jury, as the case may be. Another ises or paying the increased amount of statute on condemnation by railroads, 66 damages awarded. Oklahoma Statutes 1951, Sec. 56, refers to In acquiring land for the Turner Turn• the payment to be made by the condemnor pike, it was necessary for the Oklahoma as the amount so assessed by said com• Turnpike Commission to condemn certam missioners or district court. The land• parcels of land. Commissioners appomted owner argued that by these statutory pro• by the court fixed the amount of damages visions payment of the jury award was a at $650, which amount was paid into court condition precedent to the right of appeal by the turnpike commission, whereupon by the condemnor. The supreme court possession of the land involved was taken. could not so construe the statutes. It The landowners demanded trial by jury was not so provided specifically, and this and in that trial damages amounting to argument overlooked the fact that, in this S2,500 were awarded. Thereupon the turn• case, the condemnor had paid in the com• pike commission filed motion for a new missioner's award long prior to the jury trial. At this point the commission was trial. The argument was presented as if ordered to pay a $500 remittitur. the condemnor had not paid in the com• 'See Memorandum 56, June 1952, Committee on Land Acqui• missioners' award and thereby set up its sition and Control of Highway Access and Adjacent Areas, High• way Research Correlation Service, Circular No 165. right of possession long prior to jury trial and, in fact, prior to demand for jury director also contended that the abutting trial. property owner's access to the thorough• The court stated that circumstances fare was not changed as a result of the here shown did not disclose the violation improvement, because an ordinance pre• of any constitutional or statutory rights of viously passed by the city prohibited park• the landowner, and that all such rights and ing of vehicles on both sides of the street. all further or future rights of the land• The court stated that it had long been owner might be safeguarded and enforced the law of the State of Ohio that an owner in the further orderly proceedings in the of real property had an easement m the condemnation case, without requiring any public street on which his property abutted, unauthorized payment or any premature as an appurtenance thereto; and that if a payment to be made by the condemnor. substantial change of grade m the street The court found no merit in the conten• upon which the property abutted rendered tion that the statutory provision m 69 the buildings thereon less convenient of Oklahoma Statutes 1951, Sec. 658, to the access, there was an appropriation to that effect that in such a condemnation pro• extent of the property right in the easement ceeding the trial court might make such for which compensation might be required. orders as might be just to the authority The improvement m question did result in and to the owners of the property to be a substantial change in grade and the owner condemned, justified the court order re• suffered a "takmg" of his realty. He was quiring the further payment as necessary to entitled to compensation from the state to protect the landowner. the extent of his damage. The trial court was prohibited from en• The court further stated that an abutting forcing the order requiring the condemnor owner's right to access to his property to make the additional deposit and from from a street or highway could not be de• taking any further action except such as stroyed or unreasonably affected by the would permit the turnpike authority to provisions of a parking ordinance. Such prosecute its appeal from the jury trial interference would likewise be a "taking and preserve said authority's continuing of property without compensation. right to the possession of the right-of- way.' Offset of Benefits

Compensation for Damages Resulting from Determination of the type of benefits Highway Improvements which may be offset against damages con• tinues to cause confusion in the process of The right of an abuttmg landowner to arriving at fair compensation for damages recover damages due to a change in grade resulting from partial takings in connec• resulting in impairment of access has been tion with highway land acquisition. This upheld m a number of instances by the confusion usually arises from a lack of courts. A recent Ohio case (State ex rel. understanding as to the distinction be• McKay v. Kauer, 102 N.E. (2d) 703, tween special and general benefits. A December 12, 1951) may now be added to recent Missouri case (State ex rel. State the list. In this case, the state's supreme Highway Commission v. McCann et al., court held that the state was required to 248 S.W. (2d) 17, April 3, 1952) is illus• compensate the owner of property abuttmg trative. on a street, the grade of which was sub• The case involved the takmg of a por• stantially changed by a highway improve• tion of a tract of 320 acres by the state ment, as a result of which the owner was highway commission in connection with deprived of access thereto. construction of Highway SA, in Camden Since the reconstruction project involved County. The new road bisected the owners' did not take or interfere with the surface property, leaving approximately 39 acres area of the premises, the state highway north of the road without access to the director disclaimed responsibility for southern portion and also without water, damages, if any, resulting to the property since the new road completely destroyed a as a result of the new construction. The recently built pond on the premises. The

'See Memorandum 61, November 1952, Committee on Land 'See Memorandum No 55, May 1952, Committee on Land Acquisition and Control of Highway Access and Adjacent Areas, Acquisition and Control of Highway Access and Adjacent Areas, Highway Research Correlation Service, Circular No. 179. Highway Research Correlation Service, Circular No 162 9 landowner was obliged to build a fence on fits" and then only for the amount of such either side of the road in order to use his excess. Clearly this instruction, stand• land. The farm was a stock farm for graz• ing alone, said the higher court, would, ing cattle, and before the right-of-way was under the evidence presented, permit the acquired, it was all in one body, and all jury to charge the defendants with gen• accessible to water. Right-of-way taken eral or speculative benefits which would, contained approximately 8 acres, the value in effect, require them to pay for bene• of which was estimated at from $20 to $30 fits enjoyed by all residents of the com• an acre. The old road, which ran along munity from which the other residents the north boundary of the property, could were exempt from paying. be travelled nearly every day of the year In another instruction (No. 4), the in hauling stock, etc. Condemnation com• court told the jury that in arriving at a missioners found no damage for the de• verdict, benefits, if any, that might ac• fendants. Upon subsequent trial by jury, crue to defendants by reason of the con• it was again found that defendants were struction of the road, which were com• entitled to no damage, whereupon defend• mon to other landowners in the vicinity ants appealed. of said road, parts ot whose land were During the trial, the landowners' wit• not taken, should not be considered and nesses testified that the entire farm was charged against the defendants. Plain• worth about $10,000 before the acquisi• tiffs argued that this definition of "spe• tion and from $7,500 to $8,000 after the cial benefits" should be read in connec• taking. Witnesses for the state showed tion with Instruction 5. The higher court that the farm was worth from $9,000 to stated that this argument would be tenable $ 10,000 before the takmg and about $ 12,500 if Instruction 5 had, instead of using the after the road was completed. However, general word "benefits, " used the words the appeals court found that the state's "special benefits as in other instructions witnesses had based their opinion on gen• herein defined." K there had been no eral, as well as special benefits, and also evidence of general benefits, and if part included speculative benefits. One wit• of the evidence of special benefits had ness thought the value was increased, not been speculative and conjectural, the because the owner might be able to sell court would not say that the defendants portions of his property for residential would have been damaged. "But," said purposes. This the court of appeals found the court, "we must construe the record entirely speculative, stating that the sub• as we find it and we think the instructions urban urge was not yet so strong as to as given were so confusing to the jury that create a likelihood that business buildings they may well have charged the defendants and residence lots could be sold off m the with general benefits. Their verdict of no middle of a cow pasture along a gravel damage, in view of all the facts, would so road many miles from any place that by indicate." the wildest stretch of imagination could be The case was remanded for a new considered urban. One witness stated that trial consistent with the higher court's some of his reasons for the mcreased val• opinion. ue were "on account of a good road through there." Right-of-Way Costs and Land Values Defendants took exception to the judge's instruction (No. 5) in which the jury was Farm real-estate values showed a slight told that the just compensation to which the decrease in the period March 1952 to defendants might be entitled for taking or March 1953, as indicated by Figure 1. damaging their property by the construc• The national index for March 1953, ac• tion of the highway might be paid in the cording to the March 1953 issue of "Cur• form of money or in the form of bene• rent Developments in the Farm Real Estate fits, if any, which said property might Market," a publication of the Bureau of receive because of its position directly Agricultural Economics of the United upon the highway. If the jury believed States Department of Agriculture, dropped the defendants had received "any such benefits" they could not return a verdict '°See Memorandum No 59, September 1952, Committee on for the defendants unless they found their Land Acquisition and Control of Highway Access and Adjacent Areas, Highway Research Correlation Service, Circular damages, if any, exceeded "such bene• No 172 10 to 209. This was 2 percent below the thing that highway authorities talk about in figure for July 1952 and for November glowing terms, but almost no one succeeds 1952 and 1 percent below the March 1952 in doing anything constructive about. figure. Indicated declines in the Mountain There seems no valid reason why road• and Pacific Coast States as well as in side zoning should not be considered a Iowa, Illinois, Ohio, Texas, and Okla• legitimate exercise of the police power, homa, were attributed largely to sharply but attempts to achieve this type of con• lower prices for beef cattle. In spite of trol have met with considerable opposi• the decrease in dollar value, prices for tion. For this reason, a recent decision good farm land are reported as remain• of the Wisconsin State Supreme Court, up• ing firm. However, according to the re• holding the authority of Jefferson County port of the Bureau of Agricultural Eco- to include the establishment of conserv- CHANGES IN DOLLAR VALUE OF FARM LAND* Percentages, March 1952 (o March 1953

«fo INCREASE 2 or more fo DECREASE S. DECREASE 2 or more 1% thoroughfare between the any other purpose which would be in viola• cities of Madison and Milwaukee, con• tion of the county zoning ordinance. In his structed to the most-advanced standards answer, the defendant denied the validity of modern highway construction, includ• of the zoning ordinance for two reasons, ing long tangents across Jefferson County among others: (1) it attempted to im• conducive to speed. There was a fair pose regulations not authorized by the view of defendant's premises for a sub• statutes and (2) it was an improper ex• stantial distance on the part of persons ercise of the police power. The county approaching from the west, but approach• court of Jefferson County granted the in• ing from the east, because of the presence junction and the case - was appealed. (Jef• of a hill to the east of defendant's prem• ferson County V. Timmell, 51 N. W. (2d) ises, automobiles came almost directly 518, February 5, 1952.) upon the premises before riders could see it Defendant based his argument as to The court stated that the presence of the imposition of regulations not author• business places along a busily traveled ized by statute on the fact that Section highway, such as US 30, where traffic 59.97(1) (a) of the Statutes of 1947 pro• moved at a considerable speed, presented vided that county boards might, by ordi• a traffic hazard as a result of vehicles nance, establish restricted areas along leaving the highway to patronize such water courses and did not specifically places of business and thereafter again state that the same power might be ex• entering the highway. These traffic haz• ercised along highways. The court pointed ards were aggravated where the view of out, however, that this statute also con• such business premises was obscured from ferred the general power to determine at least one direction due to the tendency areas an5nvhere in the county in which of drivers who desired to stop suddenly trades and industries might be restricted. reducing speed or turning off the highway The court found it clear that the legis• without signaling. Furthermore, where lature did not intend to limit the county's the view was obscured the hazard result• power to establish restrictive districts ing from such vehicles leaving the prem• only along watercourses. Additionally, ises and again entering the highway was the fact that the legislature, by Section greater than if there were an unobscured 84. 103 of the statutes, had conferred upon view for a long distance in either direction. the state highway commission the power The court concluded that the zoning ordi• to restrict the use of land along a high• nance in this instance, as amended so as way did not preclude the county from to establish Conservancy District B along doing so by proper zoning ordinance, in State Trunk Highway 30, barring business the absence of the highway commission places from such district, was in the exercising such power in such a way as Interest of the general welfare as promot• to conflict with the county zoning ordi• ing safety on a main traveled highway. nance. The county zoning ordinance excluded Defendant further argued that the zon• from the conservancy district nine inter• ing ordinance was an improper exercise sections on the highway. Filling stations of the police power, because it was op• and other retail businesses might be estab• pressive and arbitrary: It destroyed 50 lished in a limited area at each of these percent of the value of his property with• intersections with the proviso that new out any appreciable benefit to the public, buildings or structures must be erected and it permitted nine intersections along a certain minimum distance from the Highway 30 to be used for business pur• highway. The view at all nine of these poses but denied the same privilege to him expected intersections was unobstructed. and to others. Defendant contended that the permission In considering the constitutionality of the of business uses at these areas consti• county ordinance, the state supreme court tuted "spot zoning" rendering the ordi• said it was essential to consider whether nance discriminatory and void. The court or not it was a valid exercise of the police cited decisions from other jurisdictions in power, i. e., whether it bore a rational which it had been held that such action did relationship to the health and safety of the not constitute "spot zoning" since it was community. The highway in question was not based upon special privileges granted 12 or restrictions imposed without regard to provisions of the ordmance, they were not a unified plan. permitted to build. (City of Miami v. In the instant case, the court stated, Romer et al., 58 So. (2d) 849, January 4, there was a reasonable basis for the exer• 1952.) The width of the right-of-way of the cise of the discretion of the county board street was 30 ft., and consequently the placing defendant's premises in a restricted setback established under the ordinance district. The view of people approaching was 10 ft. defendant's premises from the east was Although the lessee of the property in obstructed by a hill, while the view of the question was unable to obtain permission nine intersections zoned for business pur• to build upon the 10-ft. strip, he was per• poses was open from either direction. mitted to construct a sidewalk 5 ft. wide According to McQuillin on Municipal Cor• within the setback. The unpaved portion of porations (3rd ed.) Sec. 25.279, if there 5 ft. remaining between the sidewalk and was any reasonable basis for the exercise the paved right-of-way of the street was of legislative discretion by the zoning subsequently paved with a "temporary" authority the same could not be disturbed paving by the city at the request of the by judicial review. Little River Busmess Men's Association, The judgment of the lower court was because of the serious drainage problem upheld. and traffic hazard caused by its unpaved condition and, it appeared to the court, Establishment of Building Lines simply as a gratuity on the part of the city. A number of cities and towns have It was contended by property owners achieved some success in controUmg the that the City of Miami had taken 10 ft. roadside by means of so-called setback without making compensation therefor. ordinances. Under the provisions of such The city denied that it had ever claimed ordmances, abutting owners are required ownership or right of access for public use to place any building erected on the land a in and to the 10-ft. strip and averred that certam distance back from the street or use by the public of this strip was by li• highway. Such ordinances have generally cense of the owners and their lessee. A been upheld by the court as a valid exercise lower court found that the owner was en• of the police power if reasonable in charac• titled to compensation in the amount of ter and if provisions are made for variances $6,818.18, and the city appealed. m cases where undue hardship to the land• The high court stated that since the side• owner results. Enforcement of such ordi• walk was constructed by the lessee for his nances has, on occasion, served the purpose own purposes, it could not be said that there of facilitatmg the widening of streets so had been an appropriation by the city of this protected, although not ostensibly enacted particular portion of the 10-ft. strip. It for this purpose. Two recent court de• followed that the decree of the lower court cisions by Florida and New York courts must have been based on the theory that have upheld the authority to enact such the ordinance m question constituted 'a ordinances, although in the New York case "taking" or appropriation to public use for the ordinance itself was declared to be which just compensation should be made confiscatory and unenforcible. under the provisions of Article xn of the 1. Florida. The ordinance here m Declaration of Rights of the constitution of question, enacted by the City of Miami, the state. provided that no building might be erected The supreme court cited the case of on any street in the city closer than 25 ft. Gorieb v. Fox, 274 U.S. 603 (1927) in to the centerline of the street. which it was held that an ordinance of the The matter of the validity of the ordi• City of Roanoke, Virginia, which created nance came before the supreme court as a a setback or building line, was validly en• result of efforts of owners of property acted under the police power of the city. abutting on N.E. 80th Terrace to force In that case, the court stated: "It is hard the city to pay them the value of 10 front to see any controlling difference between feet of their property upon which, under the regulations which required the lot owner to leave open areas at the sides and rear of "See Memorandum No. 56, June 1952, Committee on Land his house and limit the extent of his use of Acquisition and Control of Highway Access and Adjacent Areas, the space above his lot and a regulation Highway Research Correlation Service, Circular No 165 13 which requires him to set his building a owner is free to use such strip of land in reasonable distance back from the street. any lawful manner and for any lawful pur• Each interferes in the same way, if not to pose, except the construction of a building the same extent, with the owner's general thereon." right of dominion over his property. All However, the court stated that if the rest for their justification upon the same lower court had decreed only that there had reasons which have arisen in recent times been a taking of the 5 ft. paved for street as a result of the great increase and con• purposes, it might have been mclined to centration of population in urban communi• hold that there had been a taking of this ties and the vast changes in the extent and particular portion of the property for which complexity of the problems of modern compensation should be made. As it was, city life." the court could not uphold a decree which m In a Minnesota case, State ex rel. Mc- effect declared the ordinance as a whole to Kusickv. Houghton, 213 N.W. 907 (1927), be takmg of private property without com• the court stated that setback lines or build• pensation." ing lines did not really create an easement 2. New York. The New York Supreme in the strict legal sense. No one acquired Court on July 12, 1951, declared confisca• any right of passage or other use to the tory and unenforcible anordmance enacted exclusion of the owner over that part of the by the town board of the Town of Grand lot upon which buildings or structures were Island restricting building within various forbidden. The effect of setback Imes and arbitrary limits along the different high• open yards and spaces in zoning ordinances ways of the town. (Householder v. Town was merely to regulate the use of property. of Grand Island, 114 N.Y.S. (2d) 852.) It gave no beneficial use to another, except One Homer L. Householder, the owner as light and air might rest undisturbed m of a tract of land fronting on East River the space where structures were prohibited. Road, sought to have the ordinance, which This restriction of use was based upon the prohibited erection of buildings within 90 exercise of the police power for the general ft. of the right-of-way line on this road, welfare and not on contract rights or the declared unconstitutional and unenforcible exercise of the power of emment domain. as confiscatory. Enforcement of the ordi• On the basis of these and other cases nance would prevent him from building any cited, the Florida Supreme Court" held that structure whatsoever on his property, the a municipality was not required to estab• 90-ft. limit reaching practically to the lish building setback lines through the water's edge of the East Niagara River. exercise of the power of eminent domain The court took this occasion to set forth but might do so through the exercise of the some generally accepted principles as to police power. And since it was not shown, the circumstances under which an ordi• or even attempted to be shown, that the nance might be considered confiscatory. building line restriction itself, or as ap• One of these was that when ordinances re• plied to this particular property, was un• stricting the use of private property were reasonable and arbitrary, it must be held based on considerations of public health or to have been aproper exercise of the police public safety, a far greater intrusion on power to promote and conserve the public the individual's rights of ownership and of health, safety, comfort, convenience, or free, unregulated use of his property would general welfare. be approved as within the police power of "The fact that, as shown by the testi• the state. By the same token, far less of mony adduced at the trial," the court an mvasion would be permitted under ordi• stated, "the city officials may have had in nances inspired by considerations of an mind an eventual widening of the right-of- aesthetic nature. Evidence before the court way on the particular street abutting ap• in this case was not sufficient to show the pellees' property does not, in our opinion, need for such an ordinance for any reasons constitute a 'taking' of the appellees' prop• of public morals, public safety, or public erty for public use, within the meaning of health. Article Xn of the Declaration of Rights. Un• The ordinance was presumed to be in• til such time as the city officials fmd that the spired by a strong desire to improve the public interest will be best served by con• demning all or any portion of the lO-ft. "See Memorandum No 58, August 1952, Committee on Land strip for street purposes, the property Acquisition and Control of Highway Access and Adjacent Areas, Highway Research Correlation Service, Circular No 171. 14 public condition, the attractiveness, the Regulation of Driveways beauty, the fine outlook of the Town of Grand Island. But the court's task was not More and more states have come to to approve or disapprove in its broad scope realize, during the past few years, that the general purpose of creating a fine appropriate regulation of ingress and boulevard around the island. It must de• egress promotes the efficiency of travel cide only whether the ordinance passed to by highway and helps protect the roadside implement that purpose was an unwarranted against indiscriminate ribbon development. intrusion on private ownership that could Three state legislatures, those of Maine, only be sustained if provision were made Maryland, and Utah, authorized control of for compensation to be paid for property entrances to state highways by the respec• rights taken. tive state highway departments m their 1951 The property owner, according to the sessions. Rules and regulations for carry• evidence, had purchased the strip of land ing out the provisions of the Maine law were in question with the intention of improving subsequently adopted by that state's high• the property and either sellmg for building way commission. purposes or himself erecting a home or 1. Maine. The Maine law reads as homes thereon. The land involved was follows: river land, on a picturesque but sparsely settled island, and consisted of property It shall be unlawful to construct or maintain any driveway, entrance or approach within the suitable for river home sites. The effect of right-of-way of any State or State-aid high• the ordinance was to deprive the owner of the way, without a written permit from the State appropriate use and enjoyment of this land. highway commission and such right-of-way Such an ordinance the court held to be con• shall be deemed the fuU width of the right-of- fiscatory and unenforcible, constituting an way as laid out by the State, county or the attempt to accomplish by the so-called town. The commission is authorized and di• rected to malce such rules and regulations as to set-back ordmance, without any compensa• design, location and construction of driveways, tion, what could legally be done, if at all, entrances and approaches on said highways as only by the exercise of the power of emi• will adequately protect and promote the safety nent domain. A number of cases were cited of the traveling public, but the commission shall in which these general principles had been in no case deny reasonable ingress and egress stated. to property abutting the highway except on limited access highways. No permit shall be The court also found that the ordinance required for any existing driveway, entrance, was unenforcible because of its uncertainty. or approach unless the grade or location of the same is changed, but if any driveway, The ordinance stated that no building front• entrance, or approach is changed in location ing on the highway might be erected within or grade or improved, a permit shall be re• 90 ft. from the center of the right-of-way. quired. But evidence submitted made it clear that Whoever violates any of the foregoing pro• the town officials did not know where the visions or the rules and regulations made under center of the right-of-way was located, authority thereof shall be punished by a fine making their denial of the buildmg permit of not more than $100. (Chapter 332, Laws highly capricious. A limit based on meas• of 1951,) urement from the center or even the edge Regulations subsequently adopted by the of the existing pavement would be a definite state highway commission are as follows: and precise starting point, but instead it specifically required measurement from Approval of submitted application will be the center of the right-of-way, a location subject to the following restrictions: FIRST: The applicant is the owner of the unknown at least to public officials. Fur• property and that any driveway or approach thermore, the ordinance provided the heavy constructed by him is for the bonafide pur• penalty of $100 for each day of violation, pose of securing access to his property and which the court considered a drastic pro• not for the purpose of parking or servicing vision, and one which in the realm of good vehicles on the Highway Right-of-Way ex• government should have no fuzziness and cept as indicated in the FOURTH Paragraph (Section b). uncertamty as to application of the ordi• SECOND: That no entrance, ^proach or nance. " other Improvement constructed on the right- of-way as an exercise of an entrance permit "See Memorandum No 82, December 1952, Committee on Land Acquisition and Control of Highway Access and Adja• shall be relocated or its dimensions altered cent Areas, Highway Research Correlation Service, Circular without the written permission of the Maine No 182. 15

State Highway Commission or its authorized The drainage opening underneath the en• agent. trances of filled areas adjacent to the highway THIRI5: That the applicant and permittee shall be adequate to carry the water in the agrees to hold harmless the State of Maine and highway side ditches. its duly authorized agents and employees against (i) The applicant shall furnish with the ap• any action for personal injury or property plication two copies of plans or sketches show• damage sustained by reason of the exercise ing the proposed entrance locations, width and of an entrance permit arrangement; distance between entrances: set FOURTH: The location, design, and con• back of building, gasoline pumps, etc., in re• struction of the driveway or driveways de• lation to the center line of the traveled way; scribed above shall be in accordance with the length, size and location of existing pipes, foUowmg rules and regulations: culverts, catch basins or manholes, curbing, (a) All entrances shall be so located that curb and gutter and/or sidewalks, and the pro• vehicles approaching or using the entrance will posed location of new pipes, culverts, catch be able to obtain adequate sight distance in both basins or manholes, curbing, etc. directions along the highway or to maneuver (j) The applicant or permittees shall comply safely and without interference with traffic. with all regulations as may be required by local (b) The construction of parking areas on the authorities. highway right-of-way within 10 ft from the (k) The entrances and exits to and from out• nearer outside line of the traveled way of a public door (drive-in) theaters, ball parks or any highway is SPECIFICALLY PROHIBITED. public gathering place shall be considered (c) Driveway width and other details shall be special cases and special studies and issu• in accordance with the "Standard Plans for ance of permits will be made by the Maine Driveway Entrances," these plans shall be State Highway Commission after detailed plans considered a part of these rules and regula• and specifications have been submitted for tions. approval. (d) The grade of entrances shall in general (1) In order to provide adequate parking slope away from the highway surface at a rate off of the highway and shoulders and for con• of not less than % in. per ft., nor more than 1 venience to customers and a protection to the in. per ft for a distance of not less than the traveling public, the Maine State Highway prevailing width of existing shoulder plus 3 ft, Commission urges an adequate setback from but in no case not less than 5 ft from the edge the line of the right-of-way for restaurants, of the pavement road-stands, gasoline pumps and other struc• (e) Not more than two entrances (or exits) tures and installations serving the passing shall be allowed any parcel of property the motorists." frontage of which is less than 200 ft Addi• tional entrances (or exits) for parcels of prop• 2. Maryland. Although the two new erty having a frontage in excess of 200 ft shall be permitted only after showing of actual con• laws enacted by the Maryland Legislature venience and necessity. When frontage is 50 are restricted in application to driveways ft or less, only a combined entrance and exit serving commercial and industrial prop• is permitted, the width of which shall not ex• erties on state highways having traffic ceed 30 ft volumes of more than 2,000 vehicles per (f) Separations between multiple drives shall day, they are unusual in that the state roads be raised not less than 6 in. above the surface commission is authorized to limit the width of the adjacent drives and seeded or Nodded. Some form of curbing of the separations is de• and determine the location of existmg ?s sirable. (NOTE: This paragraph applies in well as new driveways. general when driveway culverts are continu• The provisions of the two new laws are ous between driveway entrances. If an open as follows: ditch is used between driveways, the raised section is not necessary.) In order to promote and further highway safe• ty, the State Roads Commission is hereby auth - (g) When sidewalk, curbing or curb and orized to limit the width of pomts of existmg gutter IS to be removed, the applicant or per• ingress and egress and determine the locations mittee shall replace at his e:q)ense the nec• of same that any commercial or mdustrlal prop• essary sidewalk, curbing or curb and gutter erty owner or user may use into any existmg at the break points of the entrance. All curb• State highway or section of State highway that ing at the side of entrance shall be rounded with carries, an average traffic volume of more than a radius of not less than 2 ft 2,000 vehicles per day, such traffic volume to (h) Drainage in highway side ditches shall have been determined over a period of one year not be altered or impeded and the applicant and by procedures heretofore used by the State Roads permittee must provide, at his expense, suit• Commission to establish densities of traffic. The able and ^proved drainage structures at all Commission, if determined expedient for traffic entrances. safety, may so limit such width and location by Surface drainage shall be provided so that all surface water on the areas adjacent to the ^^ee Memorandum No 53, March 1952, Committee on Land highway shall be carried away from the highway. Acquisition and Control of Highway Access and Adjacent Areas, Highway Research Correlation Service, Circular No 158 16 any method tt deems desirable, provided, how• permit to construct a driveway to enable ever, that nothing herein contained shall be con• the company to move the stored steel to the strued to give the Commission the authority to site of the addition to the plant. This ap• deny any abuttmg property owner all access along plication, although orally approved by the any State highway except along freeways as de• fined in Section 150 of Article 89B of the Anno• commissioner of streets and by the di• tated Code of Maryland (1947 Supplement). Ann. rector of public service of the City of Code of Maryland (1939 Edition) Article 'SSW, Cleveland, was objected to by the council• Section 21A. (Chapter 811. Laws of l95li man, and no permit was issued. No entrance from any commercial or mdus- The court indicated that such action by trlal property shall be made into any such high• way except in accordance with a permit issued a councilman in no manner represented a by the State Roads Commission on State highways legislative act by council. In such a mat• that carryanaveragetrafflc volume of more than ter the councilman was acting as an indi• 2,000 vehicles per day. Any person, firm or vidual and, as such, was not vested with corporation violating the provisions of this sec• any governmental authority of either a tion shall be subject to the penalties imposed by legislative or an admmistrative character. Section 21 of Article 89B. Ann. Code of Mary• land (1939 Edition) Article 89B, Section 21A. It had been well established by previous (Chapter fiia, Laws 0^1951. )"~^ decisions, a number of which were cited by the court, that such a delegation of power to any subordinate was unlawful un• Many cities and towns have achieved less, as a part of such power, standards effective control of ingress and egress to were established by which such power was streets and highways by the adoption of to be exercised. ordinances prohibiting the construction of Defendants argued that even if the dele• driveways without a permit issued by the gation of this authority to a single member governmental unit. Such ordinances have of council was unlawful, application might generally been upheld by the courts, if be made, under the ordmance, to the city reasonable in nature and if effective stand• council which might take action under a ards are included for the guidance of the section of the general code vesting in it the issuing agency. This is a means of regu• control of the streets. The court noted, lating not prohibiting access. An ordinance however, that in the ordinance in question of the City of Cleveland, Ohio, providing no standard was established upon which the that "except as to residential property, no council itself might base its determination permit shall be granted by the director of as to whether a particular permit should public service to cut the curb within any be granted. In conclusion, the court stated ward of the city unless and until written that the ordinance under consideration con• notice ofthe application for such permit has tained no standard of any kind, but at• been given to the member of council from tempted a delegation of legislative power, such ward," was recently declared uncon• and in this respect was violative of the stitutional by the state supreme court, be• equal protection of the law guaranteed by cause it constituted an unlawful delegation to the state and federal constitutions. a subordinate, without setting up adequate Additionally, the court brought out the standards for his guidance, and because point that an abutting owner, subject to it made possible the denial of a permit for municipal regulation, had the right to con• a driveway. (Northern Boiler Co. v. David struct a driveway from his property for a etal., 106 N.E. (2d) 620, May 28, 1952.) necessary outlet mto the traveled portion The applicant for permit, the Northern of the highway provided he did not un• Boiler Company, owned two pieces of prop• reasonably interfere with the public use of erty, on one of which was located a plant for the street and provided further the con• manufacturing and fabricating steel prod• struction was not forbidden by statute or ucts, the other being used at the time for ordinance. Even though a permit was re• the storage of steel for use in the construc• quired by statute to construct a driveway tion of an addition to the plant located on into a boulevard, this did not mean that the other property. No means of ingress there could be absolute denial to an abut• or egress to the property on which the ting owner of a right to construct such steel was stored existed. The boiler com• driveway. The plaintiff in this case, pany therefore requested issuance of a therefore, being the owner of property abutting on the street m question, had a "see Memorandum No. 54, April, 1952, Committee on Land right of access thereto, including a right. Acquisition and Control of Highway Access and Adjacent Areas, Highway Research Correlation Service, Circular No. 159 17

if necessary, to cut the curb and construct methods used to counteract them. As a a driveway to provide ingress and egress, first step in the study a questionnaire was subject to the reasonable and lawful regu• prepared and sent to all members of the lations which might be presented by ordi• roadside development committee request• nance of the council. ^° ing data on state practices looking to ef• ficient regulation of the roadside, including Control of Roadside Vegetation setback regulations, zoning provisions, regulation of public utilities, permit and Stating that trees form an integral part licensing systems, etc. Returns to the of a modern highway, serving useful as questionnaire were gratifying, containing well as ornamental purposes, a Kentucky as they do a wealth of information on the court of appeals, in the case of Common• subject. A factual analysis has been com• wealth ex rel. Keck, Commissioner of pleted, from which a report will be pre• Highways v. Shouse, 245 S.W. (2d) 441, pared for presentation to the committee (January 18, 1952), upheld the authority In connection with this study, a symposium of the state department of highways to take on roadsides, their use and protection, action against an abutting landowner for took place at an open session of the Com• cuttmg down trees in the right-of-way ad• mittee on Roadside Development at the joining his property. Annual Meeting of the Highway Research The row of trees involved was planted Board in January 1953. within approximately 1 ft. of the adjoining owner's land, the roots and limbs extend• CONTROL OF HIGHWAY ACCESS ing over such land. The landowner claimed that the trees were damaging his property. Authority to Establish Controlled-Access The court of appeals stated that it had Highways frequently pointed out in such cases that Thirty-seven states^* are now authorized the abutting landowner had title to the cen• to establish controlled-access highways and ter of the highway; that he had the right of prospects for additional states being added reasonable mgress and egress; and that he to the list during the coming year are good. might make reasonable use of the soil, so There are indications that the expressway long as it did not interfere with the full en• principle will eventually achieve general joyment of the easement acquired by the acceptance by the public. In the mean• public. However, state statutes provided time, attacks on the constitutionality of that anyone who cut trees from a highway- state enabling acts continue to be made. right-of-way without first having obtained 1. Ohio. A court test of Ohio's con• permission m writing from the engineer trolled-access highway law was decided having charge of the maintenance of the in the state's favor in a recent case, Louis highway should be subjected to a fine. The Neuweiler and Anna M. Neuweiler, etc. v. statute made no exception for an adjoining Theodore Kauer, as director of highways property owner. of Ohio, Case No. 27336, in the Court of Common Pleas, Sandusky County, Ohio. Roadside Use and Protection The state's intention to designate as a controlled-access highway several miles Efforts of the Committee on Roadside of State Route 20 between Fremont and Development were concentrated during the Clyde, was contested by affected property year on roadside use and protection, as owners who sought to enjoin the state's the final part of a 5-yr. program of study action on the ground that the law under initiated by that committee m 1948. In which this action was being taken was cooperation with the Committee on Land unconstitutional. Acquisition and Control of Highway Access Under the provisions of the state's con• and Adjacent Areas, this project contem• trolled-access highway law, (Section plates a study of all roadside problems and 1178-21 of the Ohio General Code) the "See Memorandum No 61, November 1952, Committee on director of highways is authorized to lay Land Acquisition and Control of Highway Access and Adjacent "Arkansas, California, Colorado, Connecticut, Delaware, Areas, Highway Research Correlation Service, Circular No Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Lou• 179 isiana, Maine, Maryland, Massachusetts, Michigan, Minnesota Mississippi, Missouri, Nebraska, New Hampshire, New "See Memorandum No 56, June 1952, Committee on Land Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Acquisition and Control of Highway Access and Adjacent Areas, Pennsylvania, Rhode Island, South Dakota, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin, andWyoming Highway Research Correlation Service, Circular No 165. 18

out, establish, acquire, open, construct, make the law, which necessarily involves improve, maintain, regulate, vacate, or a discretion as to what it should be, and abandon controUed-access highways in the conferring an authority or discretion as to manner in which he is authorized to do so its execution, to be exercised under and in for other highways in the state. The di• pursuance of the law. The first cannot be rector is also given such additional au• done; to the latter no valid objection can thority and power relative to such con- be made." troUed-access highways as he possesses, The highway department, through leg• or may possess, with regard to highways, islative enactments was authorized to do including the authority and power to ac• many things, including the construction, quire by gift, purchase, condemnation, or repair, location, change, abandonment of otherwise, land required for right-of-way. public roads and bridges, cooperative He may also acquire existing easements of action with other agencies, traffic control, access by purchase, gift, agreement, or research, etc. It was not seriously ad• by condemnation in the event an existing vocated that the legislature must provide highway is designated as or included within all of the details for the administration a controUed-access highway. of this authority. The controlled-access The director of highways is further highway law was not an isolated legislative authorized to lay out and construct high• authorization. It was an integral part of ways and drives to be designated as service the Ohio Code. Its terms directly referred highways, to provide access from areas to the rest of the act pertaining to the adjacent to a controUed-access highway. department of highways, inasmuch as A controlled-access highway is defined as it gave to the director all other additional a highway especially designed for through power and authority relative to controlled- traffic over which abutting property owners access highways as he had or might have have no easement or right of access by relative to highways. K this section of reason of the fact that their property abuts the law was unconstitutional, the court upon such highway and access to which may stated that the entire state highway system be allowed only at highway intersections was being maintained without legal right. designated by the director. The court stated its belief that there Three points were raised by the property was sufficient in the statute to provide a owners seeking to enjoin the state's action: standard of guidance, but if there were not, (1) the act was an unjust delegation of the the present project, contemplated for the power of the legislature; (2) it was not uni• protection of the public safety and general form in its application: and (3) the im• welfare, might well come within the pur• provement proposed was not being made in view of a rule laid down by the state su• compliance with the law, because access preme court in Matz v. Cartage Co., 132 was being permitted at points other than O. S. 272, as follows: highway intersections. Regarding the first contention, it was 7. As a general rule a law which confers claimed that the statute must be specific discretion on an executive off leer or board with• in stating some standard for the guidance out establishing any standards for guidance is a of the director, and this it failed to do. delegation of legislative power and unconstitu• tional: but when the discretion to be exercised The court, however, quoted the general relates to a police regulation for the protection rule for testing whether or not a statute of the public morals, health, safety or general delegated legislative power (11 American welfare, and it is Impossible or impracticable Jurisprudence, p. 924) to the effect that to provide such standards, and to do so would the rights, duties, privileges, or obliga• defeat the legislative object sought to be ac• tions granted or imposed by the law must complished, legislation conferring such dis• cretion may be valid and constitutional without be clearly and definitely established. The such restrictions and limitations. law must be perfect, final, and decisive in all of its parts, and the discretion which The property owners' second contention, is given must relate only to execution. that the statute did not have uniform ap• The court also quoted from an Ohio plication throughout the state, the court case (Rd. Co. v. Commissioners, 1 O. S., considered unfounded. There was no part pp. 88-89, year 1852) in which it was of the state in which it was not effective. stated: "The true distinction is, there• Undoubtedly it did not affect all persons in fore, between the delegation of power to the same manner nor to the same extent. 19 but neither did the statute defining and pursuant to the description and map of punishing murder. Both were effective the property which has been or which throughout the state and neither contravened hereafter shall be acquired in accordance the provisions of the constitution. with this chapter for the purpose of such The third point raised by the plaintiffs controlled-access highways." was to the effect that the improvement was Lands for the highway In question^ known not being made in compliance with the law, as the Tamestown-Bemus Point Highway, because access was being permitted at were conveyed to the state and the highway points other than highway intersections. was established and placed in use in August As noted above, the definition of a 1938. The defendants. Sack and others, controlled-access highway contained in from whom land was taken for this highway, the statute includes the phrase "access to were, at the time of the taking, granted which may be allowed only at highway the right to cross back and forth from one intersections designated by the director. " portion of the Sack property over the high• The court found that the legislature in way to the other portion thereof. How• using the permissive "may" rather than ever, Sack and other defendants continued the mandatory "shall," delegated to the through the years to make use of the high• discretion of the director the extent to way, not only to cross the highway at which access should be limited. places where it bounded the Sack property, but also to drive from the Sack property The property owners' petition was dis• or from premises of the different defendants missed. " onto and along the hlghw^. The state took 2. New York. The State of New York's action to enjoin the abutting land owners authority to control access was clarified from such practice. The supreme court, by court decision during the year, in a held that such use of the controlled-ac• case involving the right of abutting land• cess highway by defendants was unauth• owners to drive onto and along an ex• orized and could be enjoined. pressway (People V. Sack et al., 110 N.y.S. (2d) 556, February 20, 1952). Defendants based their contention that New York is authorized by statute to they had a right to so use the highway establish controlled-access highways on partially on the fact that when the County new locations and to deny the owners of of Chatauqua conducted condemnation pro• abutting property access to the highway ceedings for the state, the then attorney except at junctions of such highways with for the county acquiesced in the then con• other public highways. Under the pro• tention of the defendants that they had a visions of the original law, Ch^ter 248, right to go along the highway after reach• Laws of 1937, the title in fee to such real ing the same from the Sack property. The property could be acquired by the board of supreme court stated, however, that ac• supervisors of the county in which the land cording to the statute such method and use was located, either by purchase or by could only be given consent to by the state's petition as provided for in the law. The department of public works, and there board of supervisors might, in its discre• was no proof d such consent. On the tion and with the consent and ^proval of contrary, the stipulation by the state and the Department of Public Works, accept owners was one for crossing back and a deed thereof wherein a restricted or forth from one portion of the Sack prop• limited easement was reserved to an erty over the highway to the other portion owner of lands abutting on both sides of thereof. £>efendants gained no right to use such highway to cross said highway at a the highway except at designated points of specified location. entry. A subsequent amendment of the law. Defendants further claimed that the Chapter 337 Laws of 1945, took cogni• attorney for the county, in discussing the zance of the state's revised procedure for question of damages, had referred to the acquiring land for highway purposes by ad• then use of the defendants of the highway ministrative procedure, denying access to for highway purposes, not for purposes of or from controlled-access highways "ex• crossing. The supreme court, however, cepting as such access may be reserved stated that the attorney for the county had no authority to bind the state in this matter. "See Memorandum No. 54, April 1852, Committee on Land The court could not agree with defend• Acquisition and Control of Highway Access and Adjacent Areas, ant's contention that the 1945 amendments Highway Research CorreUtion Service, Circular No. 159. 20 to the highway law repealed the 1937 law doing, the interest of the public will be best applicable to the highway under question. served even though said entire lot, block or The court considered that the intent of the tract is not needed for the right-of-way proper legislature was to provide and continue the but only if the portion outside the normal right- of-way IS landlocked or is so situated that the use of limited-access highways. "These cost of acquisition to the State will be prac• highways," said the court, "have a par• tically equivalent to the total value of the whole ticular purpose, as shown by the statutes parcel of land; provided, however, that the providing for the same. That purpose is to State Highway Commissioner shall not have take care of traffic which ordinarily would the power to acquire by the exercise of the be confined to a state highway that is right of eminent domain for any of the purposes of this act any property or property rights owned crowded in its use and divert such traffic or used by any public utility as defined in Sec• for more or less lengths of mileage onto tion 48: 2-1*3 of the Revised Statutes. " the extra highway where the diverted traf• fic would not be subject to delay by the entry of traffic from adjoining lands, ex• The second act, Senate Bill 288, auth• cept at points where the state Department orizes the state highway commissioner to of Public Works, had, with careful study, acquire by gift, purchase, or condemnation determined would be less liable to delay the right of access to traffic circles exist• such diverted traffic or otherwise inter• ing or to be constructed within the state fere with traffic. It is for this purpose highway system. that the state took the Sack land and ad• joining land, and in so doing (in view of Compensation for Access Rights the contents of the statutes) it must be determined that the state, in taking such ' Two states handed down decisions lands, did not intend that traffic should during the year involving the matter of be clogged or endangered by access of payment for access rights taken in con• pedestrians or vehicles from points on nection with the construction of express• such 'limited access highways.' " ways. Finally, defendants argued that traffic \\1. Illinois. The supreme court in the turning on the highway from the Sack case of Department of Public Works and lands created no more dangers or delay Buildings v. Filkins, 104 N. E. (2d) 214 than crossing at one or two designated (January 24, 1952,) upheld the taking of places on the highway. If they could so access rights without an award therefor, argue and succeed, the court stated that where the jury considered that limitation any person using the land appropriated by upon ingress and egress provided by the the state could make the same argument new highway was no greater than the and the entire purposes of taking lands owners had in connection with the old under the 1937 law and the 1945 amend• road, was not a taking of property for ment could be destroyed. public use without "just compensation." As previously stated, 1952 was an This case reached the state supreme off-year as far as most state legisla• court upon appeal from a decision of a tures were concerned. However, two lower court by B. M. and Mary Q. Davison, new laws passed by the New Jersey leg• owners of a tract of land, a portion of islature, which meets annually, are of which was taken by the public works de• interest in the control-of-access field. partment in connection with a relocation One of these. Senate Bill 156, supple• of US 40 east of Marshall, Illinois, as an ments the state statute providing for the e:q)ressway. The Davisons owned 181 establishment, construction and mainte• acres of land bisected by the old US 40, nance of freeways and parkways, by adding all but 13*72 acres lying north of the high• the following: way. For the new road, 6. 99 acres of the portion lying south of the oil} highway In connection with the acquisition of property were taken. or property rights for any freeway or park• way or portion thereof, the State Highway Com• This 13y3-acre tract consisted of rich, missioner may, in his discretion, acquire by creek-bottom land, suitable for agri• gift, devise, purchase or condemnation, an cultural purposes, which could be entered entire lot, block or tract of land, if, by so from old US 40 only by sharp inclines *°See Memorandum No 57, July 1952, Committee on Land '^See Memorandum No 57, July 1952, Committee on Land Acquisition and Control of Highway Access and Adjacent Areas, Acquisition and Control of Highway Access and Adjacent Areas, Highway Research Correlation Service, Circular No. 169. Hi^way Research Correlation Service, Circular No. 169 21 which could not be ascended by combines, connection with the old highway, and their hayracks, or machinery other than a action should not be disturbed. tractor or wagon, but must be brought 2. Connecticut The Connecticut case in over land owned by other persons. The (Morgan v. Hill, 90 A (2d) 641, July 15, Davisons' other land, located north of the 1952) is of interest not only because it old highway, had no passageway onto that demonstrates the high cost of acquiring highway except by a sharp incline with access rights in some instances, but also high banks impassable by any machinery because the court upheld the action of the except tractor or wagon. Passing from referee appointed to make the award in the north to the south portions of the high• combining testimony of two witnesses to way involved going some distance around. arrive at a figure higher than either wit• Land north of the highway was mainly a ness had set high bluff for which the highest and best The property in question was located on use was considered to be pasture and the Boston Post Road in the town of Water- residential purposes. ford, and consisted of two tracts directly Plans for the new US 40 included pro• opposite each other. One, the northern vision for all-weather access suitable for tract, contained 3.65 acres, and fronted all agricultural and residential purposes. on the highway for 1,220 ft. while the A portion of the old highway was to be southerly tract contained 33.4 acres, and preserved as a frontage road, with a fronted on the highway for 1,320 ft. The connection therefrom to the new e;q>ress- land in each was at grade with the highway way, thus providing a point of access from at certain points, while at others it varied the north portion of the property. One from 9 ft. below to 20 ft. above. Since the point of access from what remained of land in question was located less than 2 the southerly portion was also provided mi. west of the New London boundary line, by means of a private access or frontage the court statedthat the most-adaptable use road. This is in accord with the state's for the smaller tract and for that part of policy of allowing at least one point of the larger which bordered on the highway was commercial. The post road, said the access to agricultural properties. court, was heavily traveled in this vicinity, and locations on it were being acquired for The supreme court held that the jury busmess purposes. The remainder of the award of $1,050 for land taken and $130 acreage in the southerly tract was available for damage to land taken was satisfactory for residential development. as being within the range of the evidence. The jury made no award for the taking of In taking the access for the entire front• access rights, after viewing the premises age jlescribed, the highway department and examining plans indicating that ingress appraised the damages at $500. After the and egress would be provided in a better takmg, access was limited to the use of manner than previously provided. This Tyke Lane, a country way bounding both the court considered satisfactory.. tracts on the east, and in addition thereto, The landowners contended that the tak• the northerly tract might be reached from ing of the access rights without an award the west by an oiled country road leading constituted the taking of property for off the post road. The highway depart• public use without just compensation, ment's appraisal was objected to by the contrary to Section 13 of Article II of the executor of the estate of the deceased Illinois constitution. The court found owner, and a referee was appointed by the this contention without merit for the rea• superior court in New London County, to ^ son that the term "just compensation" did determine damages. The amount fixed by not necessarily mean some award must be the referee, $14,240 was objected tobythe made. The property owner was entitled highway department, and the case was ap• to be compensated justly for what was pealed to the Connecticut Supreme Court given up to the state. If what he had given of Errors. up was of no value, the making of an award The high court stated that the action of would not be required in order that he be the referee would be reviewable if it were justly compensated. The jury had evidently apparent that he had misapplied or over- felt that the limitation upon Ingress and egress, as provided by the new highway, "See Memorandum No 58, August 1952, Committee on Land was no greater than what had existed in Acquisition and Control of Highway Access and Adjacent Areas, Highway Research Correlation Service, Circular No 171 22 looked, or had given a wrong or Improper available for such purposes are extremely effect to, some test or consideration which limited. Legislatures have been loath to it was his duty to regard. There was, increase gasoline and other highway user however, nothing in the record, according imposts for this purpose, fearing the antip• to the court to warrant the application of athy of the voter toward such increases. this principle. It was the prerogative of Revenue bond financing has been proposed the referee to accept the testimony of the as a solution to this problem, and this plaintiff's experts rather than that offered method of financing has been adopted in by witnesses for the highway department. Michigan for the purpose of acceleratmg The highway department maintained that construction of the John C. Lodge and no single expert evaluated the damages as Edsel Ford expressways in Detroit. Ju• high as the referee. However, the court dicial approval of such a course has been stated that, assuming this to be so, it did obtained in the case of Ziegler, state high• not follow that the amount fixed by him was way commissioner, v. Witherspoon, city without evidential support. Both witnesses controller, 49 N.W. (2d) 318 (October 1, appearing for the plaintiff had measured 1951). the damages on a front-foot basis. One In 1945, the Michigan state highway testified that the footage of the northerly commissioner, the Wayne County Board of and southerly tracts had been worth $8 and Road Commissioners and the City of Detroit $12, respectively, and that the taking had entered into a contract for the construction reduced the value by 50 percent. The other of the John C. Lodge and Edsel Ford Ex• witness set the value of the footage of the pressways in Detroit. As of December 31, northerly and southerly tracts before the 1950, some $42 million had been expended taking at $12 and $15 respectively, but he for the highways, the participating units was of the opinion that the loss of access having contributed a total of $5 million an• reduced the value by one third, rather than nually, with federal-aid highway funds mak• one half as had the first witness. ing up the balance. At the present rate of In arrivmg at his estimate of damage progress under the 1945 contract it was to the northerly tract, the referee accepted estimated that it would take an additional the higher value on the footage, as set by 15 yr. to complete the projects, which were the first witness, and the greater percentage being built in sections as the money became reduction in value from loss of access, as available. There was no provision for set by the other witness. This he was borrowing money to expedite construction. privileged to do, in the court's opinion. At the J950 extra session of the state "A trier's acceptance," said the court, legislature, an amendment to the existing "and use of the testimony of a witness on law was passed, authorizing the commis• some points does not preclude its rejec• sioner of highways to enter into a contract tion on others." As to the southerly tract, with any county, city, or village for the the testimony of the first witness taken construction of controlled-access highways alone supported the conclusion of the to be financed through the public sale of referee. bonds. The act provided that the state, The court held that the referee was county, and city or village should share justified m. finding the damages for the costs, authorizing these units to make an taking of $14,240, as contrasted with the irrevocable pledge of sufficient moneys to highway department's appraisal of $500.'* pay the bonds, but very carefully limiting the nature of the pledge, specifying that it Expressway Fmancing should not be a general obligation of the state nor of the contracting counties or The need for expressway facilities is cities, but should be payable solely from well recognized by street and highway of• allocations to the units from the state high• ficials generally, but such facilities are way fund. expensive to build, and their financmg has On April 17, 1951, under the authority presented a problem, almost insurmount• of this act, the commissioner of highways, able in scope, m many areas, where funds the county, and the city entered mto a con• tract for the completion of the projects and "See Memorandum No 61, November 1952, Committee on financing thereof, by the issuance of $80 Land Acquisition and Control of Highway Access and Adjacent million in bonds. The state highway com• Areas, Highway Research Correlation Service, Circular No. 179 missioner agreed to contribute 50 percent 23 or $2% million a year toward payment of ized by the constitution; (4) although the mterest and principal on the bonds, the contract irrevocably pledged funds for the county and city each agreeing to pay payment of the bonds, the pledge was re• $1, 250,000 or 25 percent, a year. Each vocable either by subsequent legislation, irrevocably pledged such annual sums from or by constitutional amendment; (5) an ir• their share of state highway funds. The revocable grant would be a suspension of contract further provided for the method of the power of taxation for future legislatures. collection in case of default by the parties As to the purpose of the act and of the or any of them, and further stated that the contract the court found this evident. The state highway commissioner, in his dis• need for the highways was not questioned. cretion, may use any federal funds received The Wayne County highway system was or allocated to him by the federal govern• inadequate, the movement of vehicular ment which may be legally used to pay traffic, raw materials and manufactured principal and interest on the bonds. It was goods being retarded. Moreover, con• distinctly stated that the bonds were not a struction involved the condemnation of city general obligation of the state but were property, the building of a large portion of payable only from income received from the highways below the level of surrounding highway-user taxes. property, the erection of bridges, replace• Under the terms of the contract, the ment of public utilities and their conduits, right was reserved to issue additional bonds and other activities. Estimates showed of equal standing by the state, if moneys that if the projects could be completed realized from the bond issue proved insuf• within 5 yr. the additional cost would be ficient to complete the project. Approval $134 million but if 15 yr. were needed, of the bonds by the Michigan Finance Com• it was contended that the cost would be mission was required. Bids for purchase of much higher. It was also estimated that a the bonds must be approved by the State Ad• contribution of $80 million by the parties ministrative Board, the common council of to the contract would be sufficient to com• the City of Detroit, and the Board of Super• plete the project, for additional moneys visors and the Board of County Road Com• would be forthcoming from federal aid, missioners of Wayne County. from condemned property which would not Upon refusal of the controller of De• be immediately destroyed, and other troit to sign the above contract, the com• sources. missioner of highways instituted a suit for In answer to the controller's first point, mandamus asking that the controller be that the contract would cast a burden on directed to affix his signature to the neces• the state by requiring an annual pa3rment of sary documents. The state supreme court $2% million or five sevenths of the maxi• held that there was no legal reason for the mum expenditure which the state highway controller's refusal to sign the documents. commissioner was authorized to expend In refusing to sign the contract, the con• for controlled-access highways, leav• troller raised several important questions ing only $1 million for highways of this m regard to the validity thereof and of the type which might be constructed in other proposed bond issue: (1) the contract cast parts of the state, the court stated that the a burden on the taxing power of the state by commissioner of highways acted fully within requiring an annual payment of $2^8 million his rights and did not abuse his discretion. or five sevenths of the maximum expendi• The population of the Metropolitan District ture which the state highway commissioner of Detroit constituted but slightly less than was authorized to expand for controlled- half of the entire population of the state. access highways; (2) the act under which Receipts from fuel and weight taxes for the contract was entered mto violated Sec• Wayne County in 1950 amounted to over 35 tion 10 of the state constitution limiting the percent of the total collections for the amount which the state might borrow for state. The amounts received from the the improvement of highways, pledge its metropolitan district were increasing each credit and issue bonds therefor to $50 year in a larger proportion. The number million; (3) the act also violated Section of vehicles registered in 1950 from Wayne 11 of the constitution, providing that no County was more than one-third of the total scrip, certificate or other evidence of registrations for the state. These figures state indebtedness might be issued, except clearly indicated that congestion m this for such debts as were expressly author• area must be very great and with the large 24 amounts respectively paid by Wayne County be issued except for such debts as were for fuel and weight taxes, there was nothing expressly authorized by the constitution. unfair or confiscatory in the action of the Vehicular taxes had often been termed state highway commissioner in agreeing to privilege taxes for the use of the state's continue to appropriate a large amount, as highways. They were paid only by motor- in the past, for the two projects. Although vehicle owners and users, and the moneys the residents of Detroit and of Wayne County derived therefrom were used solely for the would largely benefit from the construction benefit of those persons who paid the tax. of the projects, there would be a benefit to The obligations contained in the bonds here the state as a whole as well. Taxes in under question were not obligations of the their various forms on industry would be state, according to the act under which they used by the state without relation to their were issued, as well as the contract entered origin, and improved transportation would into by the state, the county, and the city. encourage new or expanded industry withm The constitutional debt limitation, said the the Detroit area. Michigan residents, who court, would not apply to bonds issued under did not live in Wayne County, but who would this act. enter it for business or pleasure, would This opinion was substantiated by a de• reap the benefit of this improved transpor• cision handed down m Gruen v. State Tax tation. It would be an added inducement to Commission, 35 Wash. (2d) 1, 211 P. (2d) out-of-state tourists who must travel 651, 679, November 5, 1949: through Wayne County in order to reach the recreation areas of the state. Finally, The cases which we have considered state the improved transportation in and through what must be held to be the unanimous view of Detroit was essential to national defense, the courts of this country upon the question of a matter of importance to everyone. whether or not bonds payable out of a ^peclal fund, supplied by an excise tax, constitute a To the controller's second contention, debt within the meaning of constitutional limi• that the act under which the contract was tations fixing a general debt limitation. Based entered into violated Section 10 of the con• upon those cases and the cited cases decided stitution limiting the amount which the state by this court, which indicate an approval of might borrow for the improvement of high• the special fund doctrine and, further, that excise taxes are not controlled by constitu• ways, pledge its credit and issue bonds, tional provisions, we hold that the Issuance the court stated that it had long been set• and sale of bonds provided for In this act do tled that revenue bonds issued by the state not in any way constitute a debt against the did not fall within the scope of this section State of Washington. The bonds provided for of the constitution, citmg previous cases are to be paid from a special fund and solely upholdmg this theory. The court held that from anticipated revenues to be derived from the sale of cigarettes. They are not, and can• revenue bonds were closely analogous to not be, a general obligation of the State. In the bonds issued under the present act, the event the anticlpatedproflts do not material• since the funds used to pay these bonds ize and the fund becomes exhausted, the pur• were not a part of the general funds of the chaser of the lx>nds has no legal redress against state. Vehicular taxes, almost since their the State. He must look solely to the fund upon origin, had been earmarked exclusively for which they are drawn. highway purposes. In fact. Section 22 of Article 10 of the constitution provided that The court found no basis for the con• "all taxes imposed directly or indirectly troller's contention that although the con• upon gasoline and like fuel sold or used to tract irrevocably pledged funds for the propel motor vehicles upon the highways of payment of the bonds, the pledge was re• this State, and on all motor vehicles regis• vocable either by subsequent legislation or tered in this State, shall ... be used ex• by constitutional amendment. Bondholders clusively for highway purposes, including are protected against subsequent legislation the payment of public debts mcurred there• which would impair the contractual obliga• for " The court did not believe that the tion evidenced by the bond. A situation of debts authorized by the present act were this kind was the subject of the decision in prohibited by this section of the constitution. the case of city of Quincy, 4 Wall. 535, Neither did the court find that the act 71 U.S. 535, 18 L. Ed. 403, (1866) where violated Section 11 of the state constitution, the defendant city had issued bonds in order which provided that no scrip, certificate or to purchase railroad stock. The Illinois other evidence of state indebtedness should act provided for a special tax to pay the 25

interest on the bonds. Subsequent legis• Board. Reese's paper, "Legal Aspects of lation limited the city's taxing power, the Highway-Access Control," is included m effect bemg that the city could no longer this report. pay the interest. The supreme court held that the subsequent act was invalid under PARKING Article I, Section 10, of the United States Consittution as a law impairing the obliga• Financing of Municipal Parking Facilities tion of contracts. Nor did the Michigan Supreme Court The decisions of three state courts on consider that a constitutional amendment the subject of revenue bond financing in which had the effect of impairing the bond• connection with the provision of municipal holder's security was valid, the United parking facilities are of interest. In two States Supreme Court having held that an states, Colorado and Missouri, the courts amendment to a state constitution was pas- upheld the validity of state statutes auth• smg a law for the purpose of the contracts orizing this type of financing. In New clause. The pledge was irrevocable as any Jersey, the court held that the City of statute or amendment to the constitution Hackensack could not pledge its credit impairing the obligation of the bonds would to secure payment of bonds Issued by be invalid msofar as it affected bonds there• the parking authority of that city. tofore issued. !• Colorado. This is a case in which Finally, the court found no merit in the the treasurer and auditor of the City and controller's argument that an irrevocable County of Denver refused to approve the grant would be a suspension of the power of issuance of $4 million of off-street park• taxation for future legislatures. The con• ing bonds, whereupon the city and county tract provided only that the bondholders re• asked for declaratory judgment concern• ceive payment from funds derived from the ing the validity of the bonds. The trial state highway fund. It did not provide how court held in favor of Denver and the the money was to be collected for that fund. treasurer and auditor brought the case to The legislature retained full power to in• the supreme court of the state, seeking crease or decrease the taxes earmarked reversal of the judgment (Brodhead et for the fund, or to create new sources of al. v. city and county of Denver et al., taxation. Existing taxes earmarked for the 247 P. (2d) 140, July 21, 1952). state highway funds could not be decreased In 1948 an ordinance providing for the to such an extent that the bondholders' se• provision of off-street-parking facilities curity was impaired, but subject to that ex• was ^proved by the electorate, but sub• ception, future legislatures retained full sequently an attack on the validity of the control over the tax laws of the state. ordinance was upheld by the court in the Thus the controller was directed to sign case of McNichols v. Denver, 230 P. (2d) the contract as required by law, the court 591, 1950. A new ordinance, enacted in holding that there was no legal reason for December 1951, and amended in 1952, his refusal to do so. eliminated objectionable provisions, in• cluding provision for a call prior to the Access-Control Study maturity date of the proposed off-street- parking bonds at a premium instead of at A sound legal basis for the control of par. Also eliminated was the provision for access is of the greatest importance to the sale of any new bonds at what was ad• expressway program, yet very little has mitted to be virtually a private sale. The been done along this line. During the past new ordinance provided for sale of bonds year, the committee sponsored continuing at public sale. It also eliminated a pro• research on this subject; a legal research vision for securing the bonds by a trust project at Ohio State University involved deed running to a private trustee con• this matter. A preliminary report on this veying the facilities to be acquired. Thus project was presented at the open meeting the court considered that the 1951 ordi• of the committee at the Thirty-Second An• nance had eliminated the features which nual Meeting of the Highway Research the court questioned in the McNichols case. The treasurer and the auditor contended "See Memorandum 52, February 1952, Committee on Land that elimination of the provision for mort• Acquisition andControl of Highway Access and Adjacent Areas, gaging the facilities as additional security Highway Research Correlation Service, Circular No 1S5 26 for the bonds so altered the nature of the ity, however, did not detract from the fact bonds that they could not be considered the that such an improvement benefits the same as those previously approved by the whole community, and the project thus voters. With this the court refused to fell properly into the classification of agree, stating that the fact that the voters being for a public and municipal purpose. authorized mortgaging of the facilities in In addition, the burden of servicing these the 1948 ordinance, did not prevent issu• revenue bonds fell exclusively upon the ance of bonds unsecured by a mortgage. user of the facility, who was under no The purpose of a mortgage was to give the compulsion to use the facilities. The creditor additional protection for the loan. court contended that discrimination could If Denver could negotiate the loan without not be said to thrive on such a soil. mortgaging its parking facilities, elimina• A final point made by defendants was to tion of this provision would be a benefit and the effect that the proposed financing bar• not a detriment to the city. gained away the police power. The court It was further argued by the defendants did not agree with this. The pledge of the that a provision in the 1951 ordinance, ad• revenues from the parking meters related ding a pledge of revenues from the on- only to those meters that might at any time street parking meters in the areas sur• be maintained within the area specified, rounding the off-street facilities, would with no obligation on the city to maintain be diverting these revenues from Den• parking meters if the city should at any ver's general fund, thus depleting this time see fit to discontinue them. The city fund. This, according to the court, in• had agreed to maintain the off-street volved the wisdom of the measure and facilities during the life of the bonds, but not its validity. The court might rule should it desire to sell the facilities at on the validity of the law but it might not any time, or the property on which the sit in judgment on its wisdom. facilities were located, it had the priv• The question as to whether or not the ilege of calling the bonds on or after De• issuance of bonds for the purpose of ac• cember 1, 1961, at par. Thus the court quiring parking facilities constituted the was of the opinion that even from a tech• issuance of bonds for a public purpose nical stan4>oint, the city's mobility of also arose in this case. However, the action remained essentially unimpaired. Denver city council had declared theis- The judgment of the lower court was suance of such bonds was for a municipal affirmed. purpose, and as the court said, ordi• 2. Missouri. In a taxpayers suit which narily a legislative declaration to such reached the Missouri State Supreme Court, effect is given great weight. No grounds the issuance of $50,000Kansas City park• for overthrowing this legislative finding ing-facility bonds was questioned on the and declaration had been supplied. ground that such action violated the pro• Another point argued in this case re• visions of Section 27, Article VI, of the lated to the matter of benefits accruing state constitution (Kansas City v. Fish- from the proposed parking facilities, the man, 241S.W. (2d) 377, July 13, 1951). defendants urging that the plan would es• The Kansas City ordinance under which pecially benefit the downtown retail area, the bonds in question were to be issued and that the proper method of financing recited that the city intended to construct should have been through the creation of public off - street - parking facilities on a special improvement district and the ground it owned in the city, and that its issuance of special improvement bonds. electors had authorized the issuance of This might have been used as an alter• $174 million general obligation bonds for native method, said the court, or the off- the construction and equipment of public street parking project could have been parking facilities and the acquisition of financed by general obligation bonds of land therefor. The ordinance further re• the city. The fact that most municipal cited that the amount of bonds so voted improvements when financed by general would not be sufficient for all necessary obligation bonds were open to criticism parking facilities and authorized the is• that the proposed improvements con• suance of parking-facility revenue bonds ferred a larger benefit on the district in which the improvements were being in• "See Memorandum 61, November 1952, Committee on Land stalled than upon the rest of the commun• Acquisition andControl of Highway Access and Adjacent Areas, Highway Research Correlation Service, Circular 179 27

upto^aVa million. The $50,000 bonds purposes, and therefore the legislature here under question constituted Series A had complete authority to authorize rev• of these revenue bonds. Series A bonds enue bonds for such facilities, which it were made payable as to principal and had done by enacting Sections 71,350- interest solely from the money and rev• 71. 360 Revised Statutes of Missouri, 1949, enue arising from the ownership of and Section 71, 350 authorized the provision operation of the off-street facility to be of parking facilities, and Section 71. 360 constructed or developed in whole or in provided that such facilities might be part from the proceeds of said bonds and financed by the issuance of "negotiable might not be payable in whole or in part interest-bearing revenue bonds, the prin• out of any funds raised by taxation. cipal and interest of which shall be payable The provision of the state constitution solely from the revenues derived by such cited by the ta^ayer bringing the suit, municipality from the operation of such Section 27, Article VI, provides that, parking facilities, which revenue bonds "Any city or incorporated town or village may be issued and sold by the municipality in this state, by vote of four sevenths of when so authorized by the city council, the qualified electors . . . may issue board of aldermen, or other legislative and sell its negotiable interest bearing authority of such city. " The court cited revenue bonds for the purpose of paving previous decisions in which the authority all or part of the cost of purchasing, con• of the legislature to authorize cities to structing, extending or improving any issue revenue bonds of this character for revenue producing water, gas, or electric- purposes not prohibited by the constitution light works, heating or power plants, or had been upheld. airports, to be owned exclusively by the The court therefore held that the legis• municipality, the cost of operation and lature had authority to authorize the issu• maintenance and the principal and interest ance of these revenue bonds by the city and of the bonds to be payable solely from the had so authorized by Sections 71.350- revenues derived by the municipality from 71. 360 referred to above." the operation of such utility, " 3. New Jersey. In this case, the right The taxpayer contended that the present of the parking authority of Hackensack, bonds (1) had not been approved by four New Jersey, to enter into certain agree• sevenths of the qualified electors; (2) ments with the city, in connection with the parking facilities were not such a utility as financing of parking facilities was chal• contemplated by the constitution: (3) the lenged by a taxpayer, and held to be in vi• ordinance did not contemplate that the city olation of state statutes by the state su• should exclusively own the proposed park• preme court (DeLorenzo v. city of Hack• ing facility; and (4) the ordinance pro• ensack et al., 88 A. (2d) 511, March 31, vided that the city would pay the cost of 1952). operation, maintenance, repairs, and Subsequent to creation of the parking damage claims from other sources if the authority, by ordinance, under provisions revenues derived were insufficient after of Chapter 198, Laws of 1948, studies payment of interest and principal on the were made, construction of several off- bonds. street-parking projects was planned and The state's supreme court concluded the authority entered into negotiations for that Section 27, Article VI, of the consti• the sale of its bonds. Since it was evi• tution had no application to the bonds in dent that if the authority's bonds could this case. Since a state constitution was pledge the city's credit as well as its own, not a grant of power but, as to legislative they would be more readily saleable at power, only a limitation, except for the lower interest rates, the city and the limitations imposed thereby, the power of authority entered into agreement pro• the state legislature was unlimited and viding that the authority would acquire practically absolute. The constitutional certain designated parcels of land and provision here cited prohibited the legis• construct parking facilities thereon. The lature from authorizing revenue bonds for city would lease the land and facilities for certain purposes which were not approved 30 yr, and would agree to pay fixed annual by vote of four sevenths of the qualified electors. Construction and operation of "See Memorandum 52, February 1952, Committee on Land parking facilities were not among these Acquisition and Control of Highway Access and Adjacent Areas, Highway Research Correlation Service, Circular 155 28 rentals. Possession and operation of the of Section 9, which provided that the bonds land and facilities were to remain in the of the authority "shall not be a debt of the authority which would reduce each annual state or any political subdivision thereof, rental payment from the net revenue re• and neither the state nor any political sub• alized by it during the preceding year from division thereof shall be liable thereon, nor such operation. The authority could mort• in any event shall such bonds or obligations gage the premises, issue its bonds, and be payable out of any funds or properties assign the rental payments due from the other than those of said authority. " city to a trustee for bond-holders as ad• Although the legislature in enacting ditional security; in such event the city's Chapter 198, Laws of 1948, recognized obligation to make its rental payments that even though the authorities would be would remain absolute and unconditional, substantially self-liquidating, they might even though the authority did not undertake require incidental aid as provided by Sec• or complete the construction of the parking tions 8 and 21, above, nowhere did the court facilities or otherwise defaulted. find it indicated that the municipality's The ta^ayer's complaint was dismissed grant of aid might extend to a municipal by a lower court, and the state supreme guarantee of the parking authority's bonds. court agreed to review its judgment In fact, the court considered Section 9, The higher court, in the light of pre• above, to be a legislative mandate against vious decisions, found that the enabling such a guarantee, and any attempt to evade statute, Chapter 198, Laws of 1948, in• this mandate and the public policy it em• sofar as it authorized the creation of a bodied, such as that portrayed by the parking authority in Hackensack with power agreements between the city and the auth• to issue its bonds, constituted a proper ority, ought and will be struck down by the exercise of the legislation function. Leg• courts. islative authority in this respect was ap• parently not questioned by the ta3q)ayer. Section 21, according to the court, must Particular powers granted by the statute be read in the light of the underlying stat• were questioned, but since the only real utory purpose and other pertinent sections controversy between the parties in this of the act, particularly Section 9. Thus case was the matter of the validity of the read, it might be said to express the leg• agreements between the city and the park• islative contemplation that the municipality ing authority,' the supreme court stated might properly lend or grant money or that it would refrain from consideration of agree to take such action from funds cur• other issues set forth in the briefs of rently appropriated or otherwise actually counseL available for distribution, and under Sec• The agreements between the city and the tion 8 grants thus made within Section 21 parking authority, said the court, in sub• might be pledged by the authority as ad• stance contemplated that the city would be ditional security on its bonds. obligated to make contributions to meet the On the other hand the contention of the principal and interest on the authority's city and the authority would enable the bonds where its own revenues were insuf• municipality to guarantee at the inception ficient The city and the authority con• payment of the authority's entire bond tended that the enabling act contained ade• issue, thus largely nullifying Section 9 and quate provision authorizing such contribu• frustrating the primary legislative pur• tions. Section 8 provided that any city pose that, unlike the situation where the "shall have the power from time to time parking facility is operated by the mu• to grant, appropriate, donate, contribute, nicipality itself (as authorized by Chapter or lend money to such authority or to agree 138 of the New Jersey Laws of 1942) local to take such action," that the authority's taxpayers are not to be obligated directly bonds "may be additionally secured by a or indirectly on the independent parking pledge of any grant or contributions from authority's revenue bonds. the federal government, state or county, The supreme court declared the agree• or municipality." ments invalid and ordered them set aside.^^ On the other hand, the contention was advanced that under the agreements, the city had, in effect, pledged its credit to "See Memorandum 58, August 1952, Committee on Land Acquisition and Control of Highway Access and Adjacent Areas, secure payment of the bonds in violation Highway Research Correlation Service, ClrcuUr 171 29

Provision of Off-Street-Parking Facilities tending, maintaining, or operating any or As Corporate Purpose all of its parking facilities." The powers thus granted were quite general and were During 1952, the Illinois Supreme Court intended to cover any conceivable situa• handed down a decision to the effect that tion under which the commissioners might the construction of an off-street, under• determme a necessity existed for a park• ground parking garage was within the cor• ing facility, including the borrowmg of porate purposes of the Chicago Park Dis• money for improving and extending an ex- trict (Michigan Boulevard Building Com• istmg facility, whether or not the site of pany V. Chicago Park District, 106 N. E. such facility be acquired through the pro• (2d) 359, May 22, 1952). The case reached ceeds derived from the issue of revenue the supreme court when the Michigan Boule• bonds. vard Building Company was denied an in• Plaintiffs also contended that if the en• junction to restrain the park district from abling act authorized construction of park• constructmg an underground parkmg garage mg facilities upon existing property of the in Grant Park and Michigan Avenue, and park district, it was pledging property other issuing revenue bonds, pledging revenues than that acquired through the proceeds de• therefrom. rived from the sale of revenue bonds and An amendment to the Chicago Park Dis• therefore violated Section 12 of Article DC trict Act, approved m 1951, authorized the of the state constitution. However, since park district to acquire, erect, and oper• there was no attempt to pledge o r mortgage ate motor-vehicleparkmglots, underground any existing property as security for pay• garages, parking meters, and other reve• ment of the bonds to be issued, and the site, nue-producing facilities incidental to the while valuable, was producmg no revenue parking of motor vehicles. The enabling whatever, the court could not find that there act also authorized the issuance and sale was a violation of the constitutional pro• of bonds, payable solely and only from vision. revenues derived from the operation of its The court also dismissed the argument parkmg facilities, such bonds to be secured that construction of the proposed parking by a pledge of revenues derived therefrom garage was not a corporate purpose of the (Illinois Revised Statutes 1951, Chapter park district. The act creating the district 105, paragraphs 333. 23b to 333. 23j). provided that it had the right to acquire, Acting under authority of the enabling construct, manage, and exercise control act, the Chicago Park District adopted an over and supervise the operation of all ordinance approvmg plans prepared by parks, boulevards, and driveways and to consulting engineers for the proposed regulate traffic therein and thereon. Ade• underground parking garage. Another quate parkmg space was not available, re• ordinance authorized issuance and sale of sulting in congestion and the blocking of $8% million of revenue bonds to pay the traffic on the park's boulevards and seri• cost of such construction. ously mterfering with their use as boule• The Michigan Boulevard Building Com• vards and as a means of access to the park pany contended that the enabling act did not and its recreational facilities. The court authorize construction of a parking garage stated that what constituted a corporate on land owned by the park district, and that purpose as applied to any municipal cor• if such a facility was constructed from the poration depended somewhat upon existing proceeds of the sale of revenue bonds, the factual conditions. A definition of cor• site must also be acquired from such pro• porate purpose cannot be static. Changing ceeds. The court found nothing m the en• conditions require that application of the abling act to support this contention. Under limitations of that legal prmciple be tem• this act, the park district had power to pered with due recognition of the existing acquire by purchase, gift, or otherwise situation so the purpose for which the public own, control, erect, improve, extend, body was organized may be accomplished maintain and operate motor-vehicle-parking and enjoyment thereof by the public made facilities, as the necessity existed therefor. possible. The park district was further authorized to The right of cities, under proper statu• borrow money and issue bonds for the pur• tory authorization, to regulate traffic and pose of "acquiring, completing, erecting, the use of streets, to install parking meters constructing, equipping, improving, ex• adjacent tocity streets and provide for off- 30 street parking had been recognized by the and air intakes with shrubbery so that it court (see City of Bloomington v. Wirrick, would not disfigure Grant Park, nor would 45N.E. (2d) 852, 1942, and Poole v. City it obstruct the view across the park. Plans of Kankakee, 94 N.E. (2d) 416, 1950). also provided for widening of Michigan There was no substantial difference be• Avenue by taking a strip off of the west tween the authority of cities and that of the side of the park, from 7 to 14 ft. in width. park district in regard to the regulation of The entrance and exits would be located in traffic. The construction of off-street Michigan Avenue as thus widened. The parking, including an underground parking amount of the surface to be used for the garage, was, in the court's opinion, within widening of Michigan Avenue and occu• the corporate purposes of the park district. pied by the 5-ft. -high vents and intakes Also involved in this case was the ques• was an infinitesimal portion constituting tion of the uses to which Grant Park might approximately 0.1 percent of the whole be put. It was asserted that the construc• park. Although the court considered it tion of the proposed garage would violate drawing too fine a line of distmction to the dedication of such park, which was to say that the vents and air mtakes were be kept free of buildings; and was incon• structures and not buildings, the erec• sistent with, and would be a violation of, tion of structures generally would not be the easement created in favor of the abut• in violation of the spirit of the restric• ting landowners. The land covered by tions m the original dedications, and it Grant Park was originally dedicated as believed the amount of land involved too "public," "open ground," "vacantof build• small to be significant in the eyes of the ings," prior to acquisition by the City of law. Chicago. Several years after the origi• There was no contention that plaintiff's nal dedication, the city, by resolution, right of view, light, and air would be inter• accepted the area and declared that it be fered with. It could not complain, the court enclosed as a public park. Subsequently, said, if the area were used for some proper the Chicago Park District acquired title corporate purpose not in violation of the from the State of Illinois and the City of easement. Chicago. The court found no proof in the The action of the lower court dismissing record that the origmal dedication was for the complamt against the Chicago Park "park" purposes rather than for other District was thus affirmed. "public" purposes. The court found it apparent that the Leasing of Space in Parkmg Facilities for mtention of the original dedication of the Nonparking Use tracts now making up Grant Park was to keep the public tracts free of buildings so The Michigan Supreme Court recently that there would be unobstructed view of handed down a decision holding that a sta• Lake Michigan. Furthermore, the inten• tute authorizing the taking of private prop• tion undoubtedly was to make the lots abut• erty for parking facilities and leasmg a ting on such tracts more desirable, and portion of the space therein for other com• easements were created in favor of the mercial uses was void (Shizas et al. v. abutting land owners. However, it was not City of Detroit, 52 N.W. (2d) 589, April reasonable, said the court, to assume 7, 1952). that the original proprietors could have The section of the law here under ques• visualized the necessity for underground tion provided that "the legislative body of parking facilities or the desirability of the city may lease for purposes other than constructing any structure under ground. the parking of automobiles, upon such Plans for the proposed construction terms and for such periods as it shall deem indicated that no part of the building proper advisable, any portion of the ground and would be located above ground, and it was basement floor space in any structure ac• proposed that after construction had been quired hereunder but not to exceed 25 per completed, the surface of Grant Park would centum of the total floor area of the entire be restored and attractively landscaped. structure, if it shall deem such leasing to Plans also showed that several vents and be beneficial in connection with the acquire- air intakes would project 5 ft. above the surface, but the park district intended, "See Memorandum 60, October 1952, Committee on Land and would be able to, conceal these vents Acquisition and Control of Highway Access and Adjacent Areas, Highway Research Correlation Service, Circular 175 31 ment and/or operation of such facilities. decided by the court, Cleveland v. City of If a structure is designed for the parking Detroit, 33 N.W. (2) 747 (1948), wherein of automobiles on the roof, such roof area plaintiffs sought to enjoin the city from shall be considered as a part of the floor condemning property to be used for the area of the structure. The mcome from construction of subsurface bus terminals any such lease shall be deemed a part of m connection with the defendant's street- the revenues of the facilities." railway system. However, in that case Pursuant to the provisions of this act, there was no proof that the city's needs the Common Council of the City of Detroit for the mtended public use would not be adopted a resolution providing for the acqui• greater than as alleged by plaintiffs, or sition of the property in question for "off- that any part of the property to be acquired street automobile-parking facilities and would be used for a nonpublic purpose. The other municipal purposes," referring to claim of the plaintiffs apparently rested on prior action taken whereby approval had the theory that construction of the sub• been given to "the acquisitions of land for surface termmals would result in space off - street automobile - parking facilities within thebuildmgsto be erected that would and other municipal purposes." not be required for the purposes of the street-railway system, and that such space The contemplated project included con• might be rented. Such a use, the court struction of a building, as recommended by said, might properly be held to be merely the mimicipal parking authority, including incidental to the mam object served. In facilities for parking 780 motor vehicles, the present case, however, the statute ex• with 22 stores on the first floor of the pressly allowed condemnation of property structure to be rented for the purpose of to be used in part for a nonpublic purpose. producing revenue. The city made no claim that the space reserved for the 22 The court cited other cases m which stores could not be used for the parking of it had been held that statutes providing for motor vehicles or that it would be, in any the taking of land for projects contemplating sense of the term, "excess space." It was private as well as public use had been held the city's contention that since the area as• unconstitutional, among them Berrien signed for stores was materially less than Springs Water-Power Co. v. Berrien that set aside for the use of the public and Circuit Judge, 94 N.W. 379, (1903), Kes- did not exceed the 25 percent limitation sler V. City of Indianapolis, 157 N.E. imposed by the statute, it should be re• 547 (1^27), and State ex rel. Puget Sound garded as merely mcidental to the public Power and Light Company v. Superior use sought to be served. While revenue Court for Snohomish County, 233 P. 651, from rental of the stores was to be credited (1925). to the facility, no claim was made that the • On the other hand, the case of Bush parking project could not be effectuated Terminal Co. v. City of New York, 26 without such revenue. N.E. (2d) 269, (1940), upon which the de• In the court's opinion, the fact that the fendant relied in this case, did not involve revenue derived from the contemplated the right to condemn property. This was stores was required to be credited to the a case where the Port of New York Author• parking facility did not mean that the prop• ity entered into agreement with eighf trunk- erty thus rented was devoted to a public line railroads to construct an inland ter• use within the meanmgof the general prin• minal building upon land owned by the ciples of law applicable to the exercise of authority, and to lease facilities to the the power of eminent domain. Neither did railroadis. The court in that case pointed the fact that the legislature had seen fit to out the economic benefits resulting to the limit the amount of floor space that could public from the construction of inland ter• be rented to 25 percent render such non• mmals, and that the revenue from each public use merely an incidental one. The such project was required to be sufficient court found it significant that the act did to pay the expense of operation and mainte• not permit merely the leasmg of space nance as well as the mterest and sinking- not necessary to the public service, nor fund requirements of the bonds issued. was it limited to space not adapted to the Evidence established that without the upper public use. stories contemplated it would have been The defendant city claimed a parallel economically impossible to construct the between the present case and one previously terminal. Such a terminal for efficient 32 operation should occupy a full block of area read: "One hour parking from 8 a. m. land, and land m New York was too costly to 6 p. m. " to be used economically for such a purpose The ordinance also required that each alone. Without the addition of upper stories parking meter be so set as to display a which might be utilized for revenue-pro• signal showing legal parking upon the de• ducing purposes the authority would have posit of a5-cent coinfor aperiod of 1 hr., been unable to borrow the funds needed to or a 1-^ coin for a period of 12 min. for finance the erection of the terminal, and parking within a 1-hr. parking zone. If consequently would have been unable to the vehicle remained parked beyond the ^- carry out and effectuate the mandate of the p'licable period, the parking meter was to compact and comprehensive plan. display a sign indicating illegal parking, In conclusion, the court quoted the gen• and in that event the vehicle would be eral rule with reference to the validity of a considered parked overtime. A driver statute undertaking to authorize the exer• might deposit, at separate intervals, cise of the power of emment domain for 1-^ coins for a parking period of 12 min. purposes partly public and partly private, within a 1-hr. zone, the aggregate de• as summarized in 29 C.J.S., Eminent posit not to exceed two 1-cent coins for Domain, Sec. 31, page 828 as follows: two such parking periods. Attached to "A statute authorizing a taking of private each meter "plainly visible" instructions property for uses partly public and partly were to be attached, as follows: private is void, where the private use is so combined with the public use that the One Hour Parking two cannot be separated." The purposes of 12 minutes ifi the statute here under consideration were 24 minutes 2^ so interwoven that they could not be sepa• 36 minutes 3^ rated. The condemning of private property 48 minutes 4^ for other than a public use was not sanc• 60 minutes 5^ tioned by the constitution of the state. 8 a. m. to 6 p. m. Daily The statute involved the taking of property Sundays Excepted without due process of law m violation of Article 2, Sec. 16 of the state constitution, The defendant, one Scoggins, parked and the fourteenth Amendment to the. Con• his car on Fayetteville Street for a period stitution of the United States. The statute of 15 min., but failed to deposit a coin of was therefore declared void. ^ any sort. He was found guilty by a lower court of (1) leaving his car standing in a Parking-Meter Ordinances meter-controlled parking space without setting the meter in operation by deposit• A case to test the validity of the parking- ing "a coin of any sort" therein, and (2) meter ordinance of the city of Raleigh, of parking overtime. Upon appeal, the North Carolina, came before the state state supreme court found him guilty on supreme court during the year, (State v. the first count and not guilty on the second. Scoggm, 72 S.E. (2d) 97, August 22, 1952). Scoggins contended (1) that the ordi• The ordinance in question, enacted nance was invalid as a police regulation, under the provisions of state enabling and (2) that the city of Raleigh, in adopt• legislation, (General Stats., Sec. 160- ing the ordinance, exceeded the authority 200, Subd. 31) divided certain congested delegated to it by the state legislature. areas in the city intol2-min., 1-hr. and 2- He asked the following question: "Does hr. limited-parking zones between 8 a. m. the requirement, on pain of criminal lia• and 6 p. m. during weekdays, with certain bility, for the deposit of money in a park• exceptions. Some of the zones were meter- ing meter in order to park an automobile controlled. Others were not. The area on the public streets for a period of time in question, Fayettville Street from Mor• which varies in accordance with the a- gan to Cabarrus, was located in one of the mount of money deposited have a reason• meter zones, wherein parking was limited able relation to the legitimate exercise of to 1 hr. Signs erected in each block of the police power in the regulation and limit• ation of vehicular traffic and parking?" "See Memorandum S7, July 1052, Commltteeon LandAcqulsi- Taking note of the fact that the complex• tlon and Control ol Highway Access and Adjacent Areas, High• ity of today's commercial relations and way Research Correlation Service, Circular 169 33

the constantly increasing number of auto• parked his car for 15 min, in a 1-hr. mobiles rendered the question of parking parking space on a street where the signs a matter of public concern which was tax• gave notice that 1-hr, parking was per• ing the ingenuity of municipal officials, mitted? the court stated that the power to enact The court could not say that the ordi• laws designed and intended to meet this nance declared that public convenience problem unquestionably came within the and safety required that either 12 min, or general authority of the legislature to 24 min. constituted the period of lawful enact laws to promote the peace, com• parking in that block, unless by impli• fort, convenience, and prosperity of its cation, in direct conflict with the positive people. The evils to be remedied were terms of the law and the signs erected proper objectives of legislation enacted pursuant thereto. Furthermore, the right under the police power of the state. to select the 12 min, period rather than The court went on to say that the val• the 1-hr. period rested with the motorist idity of the ordinance depended, in the and not upon the demands created by con• first instance, upon whether it met the gested traffic. The conclusion was in• condition or limitation contained in the escapable, according to the court, that enabling statute, and its enforceability the lawfulness of parking for the lesser was restricted by the condition imposed period rested not on the demands of public by the ordinance itself. According to the convenience and necessity but upon the enabling legislation, the city might enact amount of money deposited in the meter. a meter-control parking ordinance only This would not suffice, said the court, for for those "areas in which the congestion the maximum length of time the motorist of vehicular traffic was such that public might leave his vehicle standing in a park• convenience and safety demanded such ing space on a public street must be fixed regulation, the ordinance being effective by law. Since the defendant parked for only only when signs were erected in each block 15 min, in a 1-hr. parking space, the giving notice thereof. " court held that he was not guilty of park• ing overtime. The court found it apparent that defend• ant was guilty on the first count, if the The vice in the ordinance, according to provision of the ordinance under which the the court, lay in the fact that when the charge was laid was valid and enforcible motorist once selected a 12- or 24-min. as a penal police regulation. The court period he was thereafter prohibited, on believed it must be so considered. Some pain of criminal prosecution, from ex• other method of setting the parking meter tending that time by depositing additional in action might in all probability be devised. pennies, not to exceed a total of five, so as But the existence of some other method to exercise the privilege granted by the did not render the action of the board in ordinance, the signs erected thereunder, selecting the coin method void. It had and the instructions attached to the meter. the right, in its discretion, to select the In other words, it was not improper or plan which it deemed best under the cir• unlawful for the city to establish shorter cumstances. Meter payments must be parking periods for 1-hr. and 2-hr. park• limited, however, to retain the regula• ing spaces by nonpenal provisions such as tion as one designed to promote the public those contained in its ordinance for the convenience and safety and not to raise convenience of the motorist, to minimize revenue. The court found no evidence his contribution to the maintenance fund, that the Raleigh ordinance was a revenue- and to expedite traffic, *° producing measure rather than a police regulation. Regulation of Parking Lots The court next considered the validity of provisions of the ordinance providing that The Minnesota State Supreme Court upon the deposit of a penny in any meter recently held, in the case of State v. United at a 1-hr, parking space, lawful parking Parking Stations, Inc. 50 N. W. (2d) 50 was limited to 12 min,, and upon the (November 16, 1951), that the provisions of deposit of a second penny at a later in• a Minneapolis ordinance licensing and terval the lawful parking time was extend• ed to a total of 24 min. Was defendant ^See Memorandum 62, December 1952, Committee on Land guilty of overtime parking because he Acquisition and Control of Highway Access and Adjacent Areas, Highway Research Correlation Service, Circular 182. 34

regulating open air parking lots, which re• the ordinance was neither arbitrary nor quire every licensee thereunder to post capricious. signs at each entrance and exit showing rates charged for parking, and other in• Zoning for Truck-Loading Facilities formation, are a reasonable exercise of the police power and do not violate due During the year, a study entitled "Zon• process clauses of the federal and state ing forTruckLoadingFacilities: Require• constitutions. ments for Off-street Truck-Loading -and- The parking lot in question had two Unloadmg Facilities m Zoning and Other entrances, at each of which signs bearing Local Ordinances," was published by the only the word "parking" were posted. A Highway Research Board as Bulletin 59. small shanty was located on the lot about This IS a companion study to "Zoning for 140 ft. from the main entrance and about Parking Facilities," Bulletin 24 of the 30 ft. from the alley entrance at the rear. Board. The study on the truck loading Patrons entering the lot were directed to problem contains a lot of factual data on drive up to the building where they were the truck terminal problem in urban areas. orally informed as to parking rates by an attendant. On the side of the shanty was Legislative and Administrative Studies on a sign showing the license number of the Parking licensee and the hourly rates charged. The exact size of the figures on this sign The Highway Research Board published was in dispute, but these figures were two summary papers, one on legislative not visible from either entrance to the trends in parking, and the other on the parking lot. Evidence disclosed that there parking administrative pattern, as its was a sign on the door of the shanty which Bulletin 48, "Off-Street Parkmg: Legis• was apparently intended to inform patrons lative Trends, Administrative Agencies, where they might pick up their automobile Summary Report." keys if the attendant were gone. The detailed study on parkmg legislation The operator of the parking lot con• is almost completed and will be submitted tended that these signs were evidence of to HRB for publication during 1953. The substantial compliance with the ordinance. full report on the admmistration of park• He also challenged the constitutionality of ing facilities is not nearly as far along, the quoted provisions of the ordinance on and will probably take a longer period to the ground that they were an unreasonable complete. exercise of the police power. He asserted that to enforce said provisions in this case American Bar Association Parkmg Project would be arbitrary and capricious. The court stated that the ordinance The committee is also cooperating with provisions in question were apparently the Municipal Law Section of the American designed to inform a motorist before en• Bar Association, in a jomt project in• tering the lot of the rates charged therein, volving a number of technical organiza• so that he might go elsewhere if the rates tions, on the legal, organizational, and seemed too high. The motorist who was economic phases of the parking problem, required to enter the lot to find out the a matter in which the committee is vitally rate must, if dissatisfied, either leave the interested. The intent is to explore some lot at the expense of personal inconvenience new areas, and to make some new and and congestion of the public streets or stay original contributions, and not to sum• and pay a rate he would not have paid had it marize that which already has been said been made known to him earlier. The and done. provisions of the ordinance might also be directed at the prevention of fraud and INFORMATION INTERCHANGE misrepresentation, which was clearly permissible within the police power. Eleven monthly memoranda were is• In light of the apparent purposes of the sued by the committee during 1952, through pertinent section or the ordinance, the the Highway Research Correlation Service. court stated, a finding of substantial compliance with the ordinance was not "See Memorandum 55, May 1952, Committee on LandAcquisl- warranted in this case. Enforcement of tlon and Control of Highway Access and Adjacent Areas, High• way Research Correlation Service, Circular 182. 35

New laws and administrative practices, Memorandum No. Circular No. 1952 significant court decisions and other per• tinent items were included m these mem• 54 159 April oranda. Memoranda numbers and month 55 162 May of release were as follows: 56 165 June 57 169 July 58 171 August Memorandum No. Circular No. 1952 59 172 September 60 175 October 52 155 February 61 179 November 53 158 March 62 182 December 36

Legal Aspects of Limiting Highway Access

HARRY B. REESE, Assistant Professor, College of Law, Ohio State University

• THE automobile has proved to be a mixed Because of the necessities of toll collection, blessing. It has expanded markets and liv• turnpikes are consistently constructed in ing areas with immeasurable effects on the accordance with limited-access principles.® society and economy.' But this gain has The prmciples, however, are equally use• been bought at an enormous cost m lives, ful for free highways. injuries, and property damage* and with an The effectiveness of restrictions upon extravagant waste of human and physical highway access in ameliorating traffic con• productive capacities.' We are faced by gestion appears to be established. Lim• the paradox of the obvious convenience and iting access eliminates such accident sour• utility of the automobile leadmg to a con• ces as vehicles entering and leaving the tinued increase m the number of motor traffic stream, cross traffic, parking, vehicles using our highways* with this in• and pedestrian traffic.'' If access restric• crease, in turn, resulting m traffic con• tion is combined with other features of gestion that threatens to destroy the auto• modern highway design, such as multiple mobiles convenience and utility. lanes, medial strips dividing opposing traf• Traffic engineers have suggested that fic, gentle curves, and adequate sight dis• one solution to this dilemma lies in the tances, the accident rate may be decreased limitation of vehicular access to major by as much as 85 percent.® The mere elim• highways, that is, m the elimmation or ination of street intersections at grade can restriction of private driveways and other triple highway capacity® and reduce fuel vehicular entrances to the public road from costs by from 50 to 75 percent.'" Time adjoining lands and the limitation of high• savings of course follow accordingly. way and street intersections at grade.' Moreover, control of highway access in• hibits the development of the roadside businesses which have clogged the roadways 'See Noble, Highways Influence Civic Growth and Industrial Development, j TRAFFIC ft l3 (1948), Willler, Traihc and and, by so doing, eliminates a principal trade, 11'kAFFIC Q 211 (1947) cause of highway obsolescence." 'The National Safety Council reports that an estimated 38,000 This evidence of the usefulness of the deaths resulted from traffic accidents in 1952 Approximately 1,3 50,OOOpersons were injured, and property damage amounted limitation of highway access finds support to about one and one-half billion dollars N Y Times, Feb 2, 1953, p 38, col 3 "See OWEN AND DEARING, TOLL ROADS 75 (1951). "See LEVIN, PUBLIC CONTROL OF HIGHWAY ACCESS AND ROADSIDE DEVELOPMENT 3-5, Public Roads Administration, 'Approximately one-fourth of all fatal traffic accidents occur Federal Works Agency, (1947), Fratar, Economic Aspects of at intersections TRAFFIC ACCIDENT FACTS 24 (Ohio Dept Highway Planntag, 3 TRAFFIC Q 321 (1535) of Highways, 1948),Cunnyngham, The Limited-Access Highway from a Lawyer's Viewpoint, 13 MO L REV IS, l3-U (1948) *rhe number of registered motor vehicles in the United States has increased by 50 percent in the last twelve years News• •HALSEY, TRAFFIC ACCIDENTS AND CONGESTION 11 (1941), week, Dec. 15, 1952, p 82, col 1 The estimated total of LEVIN, PUBUC CONTROL OF HIGHWAY ACCESS AND ROAD• vehicle-miles traveled per year has increased 56 percent in the SIDE DEVELOPMENT 32, Public Roads Administration, Fed• same period N Y Times, Feb 2, 1953, p 36, col 3. eral Works Agency (1947), Cunnyngham, The Limited-Access Highway from a Lawyer's Viewpoint, l3 MO t REV 19, ^ther techniques for meeting the problems of indiscriminate 23-24 (1948) access are available The use of land adjacent to highways may be controlled under traditional zoning powers to prevent •HIGHWAY CAPACITY MANUAL 46, 91-92 (1950), HIGHWAY the proliferation of those roadside businesses designed to ex• ECONOMICS AND DESIGN PRINCIPLES, American Road ploit free access See Levin, Highway Zonbig and Roadside Builders' Association Bull. No 67 (1940) Protection in Wisconsin, 1951 Wl^ L REV: 19?, BOWIE!, ROADSIDE CONTROL 44 (Maryland Legis Council, Research "Fratar, Some of the Economic Aspects of Highway Planning, Olv Report No. 5, 1940) In England, broad administrative 3 TRAFFICS. 321, 32i-24 (1949) See MOYER AND TES- control of access and of the use of abutting land Is employed DALL, TIRE WEAR AND COST ON SELECTED ROADWAY under the Restriction of Ribbon Development Act, 1935, 25 and SURFACES, Iowa Engineering Experiment Station Bull No 26 Geo V c 47 Parkways and ornamental roadside strips 161 (1945) may also afford protection See Abrey v Livingstone, 95 Mich 181, 54 N W 714 (1893), Monroe County v Wilkin, 260 "See Bowie, Limiting Highway Access, 4 MD L REV. 219, App Div. 366, 22 N Y S 2d 465 (1940), app denied 260 App 219-21 (1940), buGflEl, THE HIGHWAY PROBLEM IN 1950 18 Dlv 995, 25 N Y.S 2d 788 (1951). 37 in the fact that some 35 states have, since owner who is inconvenienced by an inter• 1937, enacted legislation authorizmg m ference with access must be paid by the varying circumstances the establishment of public for his loss, the costs of using con- limited-access highways." Highway au• troUed-access design may become prohibi• thorities are making increasing use of the tive. The balance to be struck between principle, both in curtailing access on ex• these conf lictmg interests of the landowner isting roads and in constructing new free• and the traveling public is a legal question ways and expressways. which has caused some difficulty. Like most cures, limiting access in• It is a fundamental principle of Anglo- volves certain costs. The benefits of the American jurisprudence that private easy mobility which the automobile affords property cannot constitutionally be approp• may be lost if access to highways is un• riated for a public use unless the owner duly restricted. A road which assures is paid an adequate compensation. " The safe and rapid travel is no help to the motor• problem of when this principle requires ist who cannot enter it where he is and leave payment to a landowner whose access^' is it at his destination. The controUed-access curtailed has proved to be a perplexing principle must therefore be employed only one, and solutions have varied. The upon highways which carry primarily United States Supreme Court has held that through traffic, and adequate land-service nothing in the federal constitution obliges roads must be available for local traffic.'* the states to recognize any particular in• As a corollary to this concern for the terests of an abutting landowner m access motorist, consideration must also be given to the highway." The matter of defining to the interests of the owner of the land the landowner's interests has therefore adjoining the highway. The value of land been left to the courts of each state and abutting a road and well situated for the the courts of different states often reach location of agasolme station, tourist court, different conclusions. Of necessity, any or roadside stand will be severely reduced observations concerning the abutter's if entrance to and from the highway is for• mterests must be generalizations, subject bidden. On the other hand, if every land- to qualification for many states, and to contradiction for some. Additional varia• tions result from the fact that the con• "These states are Alabama, Arizona, California, Colorado, stitutions of almost half of the states re• Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maine, Maryland, Massachu• quire that compensation be paid only if setts, Michigan, Mississippi, Missouri, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, private property is taken or appropriated Pennsylvania, Rhode Island, Texas, Utah, Virginia, Washing• by the government; the constitutions of ton, West Virginia, Wisconsin, and Wyoming Statutes of some 24 of these states are set out in LEVIN, PUBLIC CON• the other states require compensation for TROL OF HIGHWAY ACCESS AND ROADSIDE DEVELOPMENT damage to property caused by a public 104-47, Public Roads Administration, Federal Works A- gency (1947). In Missouri, limited-access highways are improvement, whether any land is, in fact, authorized by the constitution. MO. CONST. Art. IV, Sec taken or not. The distinction is not so 29 (1945) clear as it seems, however, for the courts "In some states the power to establish limited-access highways of all states have not interpreted these is conferred only upon the state highway director, department, or commission. In others the power is also granted to munici• "This principle is included In some form or other in the fed• palities, and counties Some of the statutes limit the applica• eral constitution and the constitutions of all states but North tion of restricted-access principles to newly constructed high• Carolina, where It has been established by Judicial construc• ways, while others also permit the conversion of existing free tion. See Yancey v. North Carolina State Highway Comm'n, highways As to what amounts to "new construction," see 222 N. Car. 106, 22 S E 2d 256 (1942). State ex rel Troy v Superior Court, 37 Wash 2d 66, 225 P. 2d 89(r(1950) In Maryland an expressway can be constructed "other rights which are often said to appertain to land abutting only if the highway carries or will carry an average traffic a highway are easements of light, airandview See2NICH0LS, load of 5,000 vehicles per day See MD LAWS ANN Art EMINENT DOMAIN 265-66 (3d ed 1950) Since these ease• 89B, Sec 20(e) (19S1), SUte Roads Comm'n v Franklin, 9S ments are usually less significant than the right of access and A. 2d 99 (Md 1953) In Oregon, adequate access must be pro• are generally governed by the same rules, light, air and view vided to certain lands in the establishment of a limited-access are not separately considered herein highway ORE COMP LAWS sees. 100-lal4, 100-lal5 (1947). In some statutes, "easements" of light, air and view may "Sauer v New York, 206 U S 536 (1906) also be curtailed, under others, only access can be ex• tinguished '""The right of an owner of land abutting on public highways has been a fruitful source of litigation in the courts of all the "With apparent concern for private access rights, the Idaho States, and the decisions have been conflicting, and often in legislature recently adopted a concurrent resolution requesting the same State irreconcilable In principle The courts have the state board of highway directors not to adopt policies of modified or overruled their own decisions, and each State more populous states which would interfere with private rights has In the end fixed and limited, by legislation or Judicial and Industry. Senate Concurrent Res No. 2, Jan. 16, 1952 decision, the rights of abutting owners in accordance with First Extraordinary Session, Thirty-first Session, Idaho State Its own view of the law and public policy " Sauer v New Legislature York, 206 U.S 536,548 (1906) 38

constitutional provisions literally. For for property taken or appropriated for a example, South Carolma's courts have public use, whether the power of eminent mterpreted that state's constitution as domain must be exercised in limitmg ac• requiring compensation for damage to cess turns upon whether the property owner property without a taking although the South IS regarded as having a property right to Carolina constitution refers only to prop• unrestricted access to an abutting high• erty "taken. Conversely, in Pennsyl• way.** If there is such a right, it consti• vania, where the constitution contains a tutes an easement in the highway, making provision for compensation for property the abutter a part owner of the land occupied taken or injured under certain circum• by the road. Extinguishment of this ease• stances, it was held in several cases that ment by the prohibition of vehicular access damage without a taking entitled the land• would destroy the supposed ownership and owner to no compensation.*" Moreover, amount to a taking of that property right. *' the distinction between taking and damage Courts and writers have often stated is beclouded by the usual rule that the broadly, and occasionally without qualifi• destruction of property constitutes its cation, that an owner of land abutting a taking,*' since the difference between public highway has a right of access to the damage and destruction is only a matter highway, and that a denial of this right en• of degree. Finally, by its nature the titles him to compensation. *^ If such state• privilege or right of access to a highway ments are interpreted in the light of the is not subject to physical seizure and use, facts presented and of the actual rulings a fact which tends to obscure the distmc - of the courts, however, the right appears tion between taking and damage in this to be more limited than is generally sup• context.** Nevertheless, the differences posed. The existence of an abutter's right in the judicial approaches to the problem of access against certain kmds of obstruc• and in the results reached seem to justify tions does not establish such a right for all separate consideration of the questions purposes. presented under these two types of consti• Thus, it appears to be generally agreed tutional provisions. that an abutter has aright against any pri• vate person who interferes with the abutter's IN STATES COMPENSATING ONLY FOR means of access by maintaining some struc - "TAKING" ture m the highway." Such an obstruction constitutes a purpresture, or public nui• In those states*' with constitutional sance, and IS subject to abatement in an provisions requiring compensation only action by the state. It also constitutes a

"MOSSV South Carolina State Hwy. Dept., 75 S E 2d 482 COftSt. Art 1, Sec. 10, Art 16, Sec. 8. In Massachusetts, (S Car 1953), Interpreting Article 1, Sec 17, ot the Con• statutes permit recovery of damages caused by highway im• stitution of South Carolina provement, and in South Carolina, such recovery Is permitted by judicial interpretation of the "taking" clause See n 19, "The Constitution of Pennsylvania, Article 16, Sec 8, re• quires private corporations with powers of eminent domain to compensate owners for property taken, injured, or destroyed **A landowner need not always be an abutter upon a highway by their works or improvements The court held a railroad In order to claim a right to compensation for loss of access. which took no property not obliged by this provision to make If he enjoys a private easement of way over intervening land compensation for injuries caused by its works. See Penn- to the highway, extinguishment of the easement may require sylvanta R R v. Llpplncott, 116 Pa. 472, 9 Atl 871 (1887), payment of compensation See United States v Welch, 217 Pennsylvania R R v Marchant, 119 Pa 541, 13 Atl 690 U.S 333 (1910) But the destruction of the possibility of ob• (1888) For similar interpretation of a statutory provision, taining such a private easement Is ordinarily non-compensable see Cantrell v Pike County, 255 S W 2d 988 (Ky 1953) See Los Angeles v. Gelger, 94 Cal App 2d 180, 210 P 2d 717 (1949). "See 2 NICHOLS, EMINENT DOMAIN 253, 259, 285 (1950) "See Aigler, Measure of Compensation for Extinguishment of "See RESTATEMENT, PROPERTY Sec 507, Comment b Easement by Condemnation, 1945 Wig L REV 5 (1945), RE- (1944) STATEMEtfr, PROPERTV sec 507, Comments band c (1944). "Alabama, Connecticut, Delaware, Florida, Idaho, Iowa, But compare Horn v Chicago, 403 111 549 , 87"N E. 2d 642 Indiana, Kansas, Maine, Massachusetts, Maryland, Michigan, (1949), where the court seems to say that extinguishment of Nevada, New Hampshire, New Jersey, New York, North access cannot amount toa "taking" of property because no land Carolina (by judicial decision), Ohio, Oregon, Pennsylvania, Is physically occupied Rhode Island, South Carolina, Tennessee, Vermont, and Wis• consin In some states, as In Alabama and Pennsylvania, the "See 10 McQUILLIN, MUNICIPAL CORPORATIONS 669-71 general constitutional provision protects only against a taking, (3d ed 1950), 1 LEWIS, EMINENT DOMAIN 178-79 (3d ed but special clauses provide for the payment of compensation 1909) for property "damaged" or "injured" by particular government or private agencies exercising powers of eminent domain "Eg, Bernard v Willamette Box (i Lumber Co , 64 Ore See ALA C0N?r Art, I, Sec. 23, Art XH, Sec 235, PA 223','i29 Pac 1039 (1913), Barham v Grant, 185 Ga 601, 196 S E 43 (1937) See also 3 NICHOLS, EMINENT DOMAIN 242-43 (3d ed 1950) 39 private nuisance to any landowner to whom or not, these cases cannot be regarded as it causes special injury, different from establishing any rights of access. that suffered by the public generally. In a number of states, however, the Since loss of access is usually regarded courts have held the landowner constitu• as a special injury, the abutter may sue tionally entitled to recompense in cases to abate the nuisance or to recover dam• where this explanation is unavailable, for ages, and to this extent it may truly be said example, where the nonhighway structure he has a "right of access." But recognition is constructed in a street owned in fee by of such a right against a private person for the city or state or in a part of the street unauthorized obstruction of the highway of which the fee is owned by some other falls far short of proving the existence of person. Deprivation of access is usually a right of access good against the mterests said to be the basis for such compensation, of the highway user. but the origin of this right is difficult to It IS also agreed, although less general• discern. In some cases, this right of ac• ly, that an owner of land adjacent to a high• cess has been founded in the notion that the way must be compensated for impairment of city or state holds the fee to a highway in access caused by uses of the highway which, trust for highway purposes; a use of the although authorized by the appropriate highway for other purposes is a breach of government, are not within the purposes trust which an abutter specially injured by of public passage for which the highway the denial of access may redress. In was established. Thus, it has been held others, the right has been based upon a that an owner is entitled to damages if the provision in the original instrument of construction of a steam railroad or of highway dedication requiring that the high• telegraph or telephone lines m the highway way be kept free; the abutting landowner, impairs access to his abutting land.^ Such regarded as a beneficiary of this promise, structures, erected by quasi-public corpora• may sue to enforce it. The fact that the tions with proper legal authorization, are landowner may have donated the land or not subject to abatement as nuisances, and may have been assessed for highway im• recovery must be predicated upon the con• provement has also been emphasized as stitutional guarantee of just compensation.* adding weight to his claim for compensa• Many of these cases present no problem tion. Some courts have noted that access of access rights, however. If the abutter to adjacent land was the original purpose owns the fee in the land occupied by the of the highway and that access is necessary roadway and the public holds only an ease• to land use.' More often, the source of ment or right -of -way for highway purposes, this right of access has been left unstated. the construction of the steam railroad or Whatever its origin, however, this prop• telegraph lines in the street may be re• erty right or easement of access is a right garded as beyond the scope of the highway good only against nonhighway uses, a lim• easement and the imposition of this addi• itation of which some courts have over• tional servitude upon the abutter's fee as looked. '* a taking of his property rights." Although The problem encountered in curtailing injury to access will often be a major ele• the access of abutters in the conversion of ment in the amount recovered, the right to compensation depends not upon that in• jury, but upon the fact that the owner had "See 2 NICHOLS, EMINENT DOMAIN 404-05 (3d ed 1950), 3Jd. 246-53 previously relinquished a highway right- of-way and not a railroad or telegraph "Eg, Lahrv Metropolitan Elevated R R , 104N.Y 268, l(nrE 528 (1887), Theolwld v Louisville R R , 66 Miss right-of-way. Smce the right to compensa• 279, 6 So 230 (1889). tion exists, whether access is obstructed "E^6 , Story v. New York Elevated R.R ,90 N.Y. 1^2(1882)

"SeeMuhlkerv New York i Harlem R R , 197 U S 544(1905), "E £., Adams v Chicago, B. t N Ry , 39 Minn 286, 39 Kurtz V Southern Pacific Co., 80 Ore 213, 155 Pac 367 N_W 629 (1888) (1916), Adams v Chicago, B & N Ry , 39 Minn 286, 39 N.W. 629(1888). Accord CityofCannelton v Lewis, 11 N E "See Bacich v Board of Control, 23 Cal. 2d 343, 350, 144 P. 2d 899 (Ind App 1953) (floodwall erected in street). Sweet v 2d 818, 823 (1943), State ejt rel Copland v Toledo, 75 Ohio Irrigation Canal Co , 254 P 2d 700, (Ore. 1953), reh denied App 378, 62 N E 2d 256Tl533). 256 P. 2d 252 (open ditch in highway) "E^ , Brownlow v O'Donoghue Bros., 276 Fed 636 (App "Sweet V. Irrigation Canal Co , ibid D C 1921), where the court considered a case Involving re• striction of access for private purposes conclusive of the ques• "SeeKnapp & Cowles Mfg Co v New York, N H & H R R , tion of the validity of access restrictions intended to facilitate 76 Conn 311, 56 Atl. 512 (1903), 3 NICHOLS, EMINENT DO• highway travel MAIN 176-78, 242 (3d ed 1950). 40

an existing highway to a freeway or limited- way for navigation and commerce. If ac• access highway is whether the landowner cess IS curtailed by a rule or a structure has a property right, good against the claims which IS designed to promote public travel of proper highway uses, which requires upon the river or lake, the landowner has exercise of the power of emment domain no cause for complaint. ** and the payment of compensation. Cases This subordination of the abutting land• involving the right of access against high• owner's interest in access toany appropri• way obstructions for private or nonhighway ate exercise of the highway easement has purposes are inapposite, for it is generally been explained by the assumption that ob• agreed that this right of access is subor- structions to access must have been con• I dinate to the fullest exercise of the highway templated when the highway right-of-way easement, that is, to all uses of the high• was originally acquired and that the possi• way by the public for purposes of travel. bility of such obstructions must have en• Under this view, there is no right of ac• tered into the compensation paid.*' To cess good against improvements designed allow recovery when access is obstructed to facilitate public travel. If there is no would amount to paying the landowner twice. property right, there is, of course, no A more realistic view is that the interest taking of property for which compensation acquired by the government in condemna• must be paid when access is curtailed. The tion for highway purposes is sufficient to principle that there is no right of access allow for all changes in the character or superior to proper highway uses is demon - amount of traffic and for all improvements strated by well-established authority in a which such changes may require, regard• number of situations analogous to the lim• less of whether such developments were, in itation of access incident to the establish• fact, considered m fixmg the price for the ment of a freeway. Thus, in a number of right-of-way.'" states with constitutions guaranteeing com• In some few cases, however, the rule pensation only for a "taking," it has been that the abutter's right of access is subject held that the construction of a viaduct or of to the public's right of travel has been an approach to a bridge in the highway so as somewhat limited. A recent opinion of the to destroy access to the front of an abutting Iowa Supreme Court held a landowner con• lot does not amount to a taking.Similar stitutionally entitled to compensation for a holdings deny compensation when access is so-called takmgof property when access to foreclosed by a change of the grade of a his land was impeded by the elevation of the highway** on the ground of the superiority center of the abutting highway for an ap• of the highway easement. proach to a bridge over an intersecting A related rule governs the rights of an highway." The decision may not amount owner of land abutting upon a navigable to the recognition of an absolute right of river or lake to access to the water. It is access superior to all highway improve• well settled that such an owner has a right ments, however, since the court pointed of access superior to all but the state's out that the location of this particular land right to facilitate public use of the water- made the anticipation of such an improve• ment extremely unlikely in fact. ** Thus, "See Clarke, The Limited-Access Highway, 27 WASH. L. REV 111, 117-19 (1B5S), 2 ELLIOTT, ROAM AND STREETS, the case could be interpreted as meaning the 1141 (4th ed 1926), 1 LEWIS, EMINENT DOMAIN 179-81 landowner is subject only to such limita• (3d ed 1909), 11 McQUILLIN, MUNICIPAL CORPORATIONS 4 (3ded 1950), 2 NICHOLS, EMINENT DOMAIN 362(3ded. 1950). tions in his access as result from changes

"E^g., Sauer v New York, 206 U S 536 (1906), Delaware "See Sage v. New York, 145 N.Y 61, 47 N E. 1096 (1897), Bridge Comm'n v Colburn, 310 U S 419 (1940), Northern State ex rel Squire v Cleveland, 150 Ohio St 303, 82 N.E Transp Co v Chicago, 99 U S 635 (1879), Chicago v Rum- 2d 70911513). See 2 NICHOLS, EMINENT DOMAIN 183 (3d ed. sey, 87 111 348(1877)(approachfortunnel in street). New York 1950). Dock Co V New York, 300 N Y 265, 90 N E 2d 183 (1949), Barrett v Union BrldgeCo , 117 Ore 220, 243 Pac 93 (1928) ''See Callender v Marsh, 1 Pick, (Mass.) 418 (1823), 2 See also 1 NICHOLS, EMINENT DOMAIN 370 (3d ed 1950), NICHOLS, EMINENT DOMAIN 369 (3d ed 1950) and cases cited In Notes, 45A L R 534(1926), and 11 A L R 2d 206 (1950) An opposite conclusion Is of course reached "See Smith v Baltimore & Ohio R R , 168 Md 89, 92-93, In states where "damage" entitles the abutter, either underthe 176 Atl 642, 643-44 (1935). constitution or by statute, to compensation See McCandless V Los Angeles, 10 Cal App 2d 407, 52 P 2d 545 (1935) "Anderlik v. Iowa State Hwy Comm'n , 240 la. 919, 38 N W. (constitutional provision), Llddlck v. Council Bluffs, 232 la. 2d 605 (1949). 197, 5 N.W 2d 361 (1942) (statute) "The court observed, 'There Is no indication here that any "Eg, Cantrell v. Pike County, 255 S W 2d 988 (Ky 195J), such improvement as defendant has made was remotely con• Horn v Chicago 403 111. 549, 87 N E 2d 642 (1949), Roman templated at the time the original easement for the highway Catholic Church v. New York, 278 App. Dlv. 1010, 105 N Y S. was acquired " 240 la., at 924 , 38 N W. 2d, at 608 2d 820 (2d Dept 1951), Dobler v Baltimore, 151 Md 154, 134 Atl 201 (1926). See also 2 NICHOLS, EMINENT DOMAIN 370 (3d ed. 1950), Bowie, Llmltbig Highway Access, 4 MD L REV 219, 228-34 (1940). 41 in the highway which might have been fore• allowance of such compensation does not seen when the highway was originally es• amount to a recognition of an easement of tablished. A somewhat similar rule ap• access as a property right. plies in Ohio, where an abutting owner Similarly, if some part of an owner's must be compensated for damages oc• land is actually and physically taken for the casioned by a change of the highway grade right-of-way of a widened or relocated only if he has improved his property to highway, he is entitled, as compensation conform to an established grade;*' the re• for this taking, to all damages caused by quirement that the grade be an established the taking, including injury to the remain• one seems to reflect a judgment that no der of his tract. The measure of recovery compensation should be paid if the change usually applied is the market value of the reasonably could have been contemplated. *' whole tract of land before the taking less Even under the usual view that the abut• the market value of the parcel remaining ter has no right of access superior to the after the taking. *® Since ease of access public right to use the highway in any man• affects market value, an impairment of ner consistent with highway purposes, ingress and egress may be paid for in this there are situations in which the extinguish• situation, although no compensation would ment of access may entitle him to damages. be required if no land were physically If the means of access curtailed is the taken. Whether such a measure of dam• only available way of ingress and egress to ages IS sound, the cases applying it cannot and from land, the land is useless for all be regarded as establishing a right of ac• practical purposes. *'' The destruction of cess superior to the highway easement. property or of its utility may constitute a Subject to these qualifications, the gen• taking in the constitutional sense. Elimina• erally accepted view that physical obstruc• tion of all access to land is thus generally tion of an abutter's access in furtherance of held to effect a taking of that land, for highway purposes does not constitute a which the owner must be paid. *' But the taking of property seems strong authority for the proposition that an existing free- "state ex rel. McKay v. Kauer, 156 Ohio St 347, 102 N.E. access highway can be converted to a limi• 2d 7037I55I), Cincinnati v. Shuller, 160 Ohio St. 95 (1953) ted-access highway without the payment of "Cf Adams v Chicago, B.

'*SeeChlcagov. Taylor, 125 U.S. 161(1888), Reardon v San Francisco, 166 Cal 492,6Pac 317 (1885), 2NICHOLS, EMINENT •"Eg, Rose v. State, 19 Cal. 2d 713, 123 P. 2d 505 (1942), DOIiIAIN 362 (1950) Mc&andless v. Los Angeles, 10 Cal. App 2d 407 , 52 P 2d 545 (1935) "See Rtgney v. Chicago, 102 111 64 (1882), 2 NICHOLS, EM• INENT 331 (1950). "See People v LaMacchia, 253 P. 2d 709, 721 (Cal App ''Eg, Burnquist T Cook, 220 Minn. 48, 19 N W 2d 394 1953) (one opening for 1580 feet of frontage inadequate) See {{SiS\, Dept of Public Works v WoU, 111 N E. 2d 322 flU also Boxberger v State Bwy Comm'n, 251 PI 2d 920 (Colo. 1953), Llcht V SUte, 277 N Y 216, 14 N E 2d 44 (1938) 1953). (under "damage" statute). Of. Eachus v Los Angeles, 103 "E.g , People T. Al. G. Smith Co., 86 CaL App. 2d 308, Cal 614, 37 Pac. 750 (189C" 19TI5: 2d 750 (1948), Department of Public Works v. Filklns, "Eg, Llddick V Council Blufis, 232 la. 197, 5 N W. 2d 411 111 304,104 N.E 2d 214 (1952) Ct State ex rel. Geblin 3fiF(l942) (under statutory provision for "damage") V. Dept of Hwys., 200 La. 409, 8 SoT 2d 71 (RW 46 the main highway in furtherance of limited- of compensable damage. If the only injur• access principles, the landowner will find ies suffered are circuity of travel and di• himself upon a dead-end street, or in a version of traffic and if the outerway is cul de sac; again the distance to the land adequate to allow otherwise unimpeded will be increased, and the market value for ingress and egress, the abutter ordinarily business purposes reduced. has no constitutional right to an award. ** In the decision of whether landowners in If, however, some part of the abutting such situations are entitled to compensation tract IS physically taken for the highway for damage in its technical sense, two right-of-way, the measure of damages limiting principles are called into play. usually applied, that is, the amount by The first, often referred to as the "prin• which the market value of the whole tract ciple of circuity of travel," holds that a before taking exceeds the market value of landowner who retains free access to the the remainder,** would ordinarily permit general system of public streets and high• recovery for the inconvenience of access ways makes no case for compensation by caused by the outerway insofar as that in• showing that street improvements or traffic convenience affects the market value. regulations compel him and his customers A recent California decision which seems to travel further to reach or to leave the to require compensation to an owner of land. The rule has its foundation in the land which was cut off from a main high• conclusion that such injury as the landowner way and relegated to an outerway might suffers is of the same kind as that suffered be explained upon this ground, since by the public generally and is not special or some land had been taken physically in peculiar to him. The principle has been widening the highway. applied to deny payment to a landowner who The case of the owner who is put m a IS required to travel further by a prohibition cul de sac or dead-end by the closing of against left turns," by the establishment of one end of his abutting street again presents a one-way street,*' or by the erection of a ordinarily only the inconveniences of cir• medial divider separating opposing lanes cuity of travel and diversion of traffic. of traffic.'* Accordingly, the courts of a number of The second limiting rule is that an owner states have held that he is entitled to no of land abutting upon a highway has no vested compensation under constitutional pro• interest in the flow of traffic passing his visions requiring payment for damage. In land and that the diversion of traffic to an• a few of the states with constitutions con• other route does not result in compensable taining such a clause, however, the land• damage." The value of land occupied by owner has been held to have a right of access a gasoline station may, of course, be sub• in both directions along his abuttmg street stantially depreciated by the relocation of to the next intersecting street; he is thus a main route, but the injury is not regarded damaged if his land is situated within the as damage in the constitutional sense. ** first block from the point where the street Application of these limiting principles is closed.*' AVhy a landowner should be to the case of the landowner whose abutting "Cf Constantine v. Sunnyvale, 91 Cal. App 2d 278, 204 P road IS converted into an outerway usually 2a~522 (1949), Beckham v State, 84 Cal App 2d 487, 149 P. 2d 296 (1944) (grade crossing elimination in effect made out- should result in the denial of the existence erwayof road intersecting abutter's street) SeeCunnyngham, The Limited-Access Highvray from a Lawyer's Viewpoint, 13 "See LEVIN, LEGAL ASPECTS OFCONTROLLING HIGHWAY Mb L REV. IS, 34 (1848) See also Slite v. Ward, 252 P ACCESS 28, Public Roads Administration, Federal Works 2d 279 (1953) (proposed outerway decreases severance damage) Agency (1943). "See Beckham v State, 64 Cal. App 2d 487, 502, 149 P 2d "See State v. Snyder, 131 W Va 650, 49 S E 2d 853 (1948), 298, 303 (1944) 2 NICHOLS, EMINENT DOMAIN 415-16 (3d ed 1950) " People V Ricciardi, 23 Cal 2d 390, 144 P 2d 799 (1943). "See Commonwealth v Nolan, 189 Ky. 34, 224 S W 506 Although this opinion is ambiguous on the point, it seems that (1920), Cavanaugh v. Gerk, 313 Mo 375, 280 S W 51 (1926) California follows the usual rule that elements of damage such as circuity of travel and diversion of traffic may properly be "Eg, People V Saylg, 101 Cal App 2d 890, 226 P. 2d 702 considered when some land is physically taken, but that they do iiSif), Holman v State, 97 Cal App 2d 237, 217 P 2d 448 not alone amount to constitutional "damage " See Colusa & (1950), Fort Smith v Van Zandt, 197 Ark 91, 122 S W 2d Hamilton R R V Leonard, 176 Cal 109, 167 Pac 878(1917), 187 (1938). Rose V. State, 19 Cal. 2d 713, 123 P. 2d 505 (1942) "See 2 NICHOLS, EMINENT DOMAIN 409 (3d ed 1950) "e g., Richmond v Hinton, 117 W. Va 223, 185 S E 411 "Eg, State ex rel Sullivan v Carrow, 57 Ariz. 434, 114 (I'SS^, Lynchburg V Peters, 145 Va. 1, 133 S E 674 (1926) P7 23 896 (19417,"Hoiloway v Purcell, 35 Cal 2d 220, 217 P See 2 NICHOLS, EMINENT DOMAIN 400 (3d ed 1950) 2d 665 (1950), Application of Oklahoma Turnpike Authority, "E g., Baclchv. Board of Control, 23 Cal 2d 343, 144 P. 203 Okla. 335, 221 P 2d 795 (1950) 2018 (1943). Rigney v. Chicago, 102 111 64 (1882), Vander- 47

held to suffer constitutional damage m this pensation, when they need only decide situation and why the somewhat arbitrary that the property served by a highway has limitation of one block's distance should been damaged by a denial of access and be imposed are not made clear.®* when, under ordinary standards, no tak• When a new limited-access highway is ing would be found. ^ Although procedural constructed where no highway existed be• rules may sometimes give significance to fore, the landowner who is made an abutter the distinction, this indiscriminate use by the construction ordinarily sustains no of language ordinarily has no untoward injury to his land from the denial of a new consequences, since the landowner must means of ingress and egress and is not be paid either if he has a "right of access" entitled to compensation for loss of access.*' which is taken or if the land served by a If the new freeway crosses the tract, di• means of access is merely damaged by viding it in two, the severance damages the curtailment. But courts m taking attributable to the difficulty of utilizing the states, where the distinction is critical, two parcels together will be enhanced by should not inadvertently accept such state• the limited-access feature, but such dam• ments as authority for the proposition that ages are awarded for loss of access be• an abutter has a property right of access tween the divided portions of the tract and superior to the public highway easement. not for loss of access to the highway." If, however, a highway right-of-way CONCLUSION is acquired and dedicated without a pro• hibition of access to the abutters, an in• It seems to be established that limitmg terest in access has been held to arise highway access can ameliorate many of immediately, even though the road has the problems of modern traffic conges• not been opened or even paved; conversion tion. Whether this technique will prove of suc*^ a proposed free-access highway too expensive for general use depends, to a limited-access highway then causes in large part, upon whether and to what damage for which the abutter must be extent abutting landowners will be held paid, at least when the right-of-way was entitled to compensation for loss of ac• originally acquired from him." cess. A decent respect for private prop• Courts in a number of states having erty demands that established rights of constitutions protecting private property property be preserved. But respect for against damage as well as agamst taking the property rights of the taxpayer also often fail to distinguish between these requires that public funds should not be two grounds for compensation.®* In cases expended as compensation for nonexistent involving questions of limiting highway rights of access. It is the function of the access, this failure is particularly evi• trial and appellate judges to decide when a dent; such courts often speak of "prop• landowner is constitutionally entitled to erty rights of access," and observe that recover for damages he may have suffered; they may be extinguished or taken only it is the province of the jury to assess by the exercise of the power of eminent those damages in dollars and cents. Ver- domain and upon the payment of just com- *° This confusion of "damage" with "taking" has been criticized burgh V Minneapolis, 98 Minn. 329, 108 N.~W fSO (1906) See Note, 32 CALIF. LAW REV. 95, 96 (1944) Of Boskovich V. Mldvale City, 243 P 2d 435 (Utah 1952) Iciil de sac caused by vacation of part of street). Grand River "*In many states. If property Is to be "taken," a condemnation iSmXilHorlty v Misenhlmer, 195 OkU. 682, 161 P. 2d 757 suit must be commenced bythe state. If propertyls only "dam• (1945) (cul de sac caused by flooding) aged," no such suit is required, and the landowner must sue the state to recover The dlstlnctlonbetween a"taklng"and "dam• "See Comment, 3 STAN* L REV 298, 307 (1951), LEVIN, age" may thus be decisive If the statute of limitations bars the LEGAL ASPECTS OF CONTROLLING HIGHWAY ACCESS 22- landowner's suit fo r damages, since in such a situation he can re• cover at ail only If the governmental interference constitutes 23, Public Roads Administration, Federal WorksAgency (1943). a "taking," so as to oblige the government to sue In such a "Schnlder v State, 38 Cal. 2d 439, 241 P 2d 1 (1952) (high• case. It was held. In accordance with the usual rule in "takmg" way widened to touch complainant's boundaries, no land "taken"), states, that curtailment of access by a viaduct was merely People V Thomas, 108 Cal App 2d 832, 239 P 2d 914 (1952) "damage," not a "taking " Horn v. Chicago, 403 111 549, 87 (new expressway partly over complainant's land) N E. 2d 642 (1949) "See, e J., State v. Ward, 252 P 2d 279 (Wash 1953) '"'One of the many examples of the disregard of this distinction Is found in In re Appropriation of an Easement, 93 Ohio App "Department of Public Works v WoU, 111 N E 2d 322 au 179, 12 N E. 411 (1952), where a court of Ohio, a "taking" 1853). state, relied upon statements from an opinion of the Supreme Court of Minnesota, a "damage" state, to establish a "property "Thus In Department of Public Works v WoU, ibid, the court right" of access And in State Roads Comm'n v Franklin, 95 observed that the "taking" of rights of access caused "damage" A. 2d 99 (Md. 1953), the Maryland court cited a California to the abutting land decision for the same proposition although Maryland is a "tak• ing" state and California allows recovery for "damage" as well 48

diets of no damage often reflect the jury's the claims of the police power outweigh recognition of the fact that the establish• the interests of the landowner. In such ment of freeways may enhance the value states, it should be emphasized that (1) of adjacent lands rather than decrease circuity of travel and diversion of traffic it. Judges, lawyers, and highway of• are not alone damage in the constitutional ficials must use similar caution in the sense, even though they may be considered development and application of the rules in the determination of the market value of law which govern the right to compen• of the land remaining after the physical sation. Unless money is to be awarded taking of a part; (2) clarity of thought will where it is not deserved, certain' prin• be promoted by a carefully drawn dis• ciples and distinctions must be kept in tinction between interferences with access mind. which amount to a taking of property and In states with constitutions guarantee• those which constitute only damage; and ing compensation only when property is (3) property does not suffer damage in the taken, the abutter's interest in access constitutional sense if the access required has, in the past, usually been held subject by those uses of the land for which it is to limitations in furtherance of the pur• naturally fitted remains unimpaired. poses of the highway easement. Broad statements in several recent opinions may DISCUSSION indicate that a property right of access, superior to all highway uses, will be MR. GORDON. I am a little curious recognized. If such a property right if there isn't possibly an out in some is to be created, it should be established cases. Is it possible that political pres• with full realization of the fact that ex• sure or something of that order might be isting authority does not seem in any state used so that there can be some alleviation to require it. In the resolution of this to a person who abuts on the highway problem, it should be recognized that: which has limited access — Have you en• (1) pronouncements of courts in states countered anything of that sort? where damage is compensable are di• MR. REESE. Not beyond general stat• rected toward a different problem, and utes which provide, although the constitution may be inapplicable, (2) cases establish- does not, that an owner's damage shall be mg a right of access against nonhighway compensated. Several States have gen• uses are inapposite when facilitation of eral statutes of that type but I have not the exercise of the highway easement is encountered any special acts where things involved; (3) payment of compensation of that sort were done although I haven't when all access is curtailed, effectively looked into the question. Of course there isolating the land, does not mean that an is a great deal of pressure from land owners award must be made when some reason• on the legislature to allow compensation able means of access remains; and (4) in these cases and I suppose it is certainly decisions upon question of statutory m- an allowable legislative judgment that they terpretation do not-amount to declarations ought to be compensated if their access is of constitutional limitations. impaired. In states with constitutions providing MR. KENNETH WOOTEN. Have you for compensation for damage to property, found any distinction made between acqui• as well as for its takmg, the problem sitions in fee and acquisitions of ease• presented by a limitation of access is not ments? whether the highway easement is superior MR. REESE. There are some older to the abutter's right of access but whether cases, particularly some New York cases, '"See Young, Economic Effects of Expressways, 5 TRAFFIC which made such a distinction in the rail• Q. 353 (1951). Verdicts of no damage were sustained against road cases, or actually m elevated railway attack In People v Al G Smith Co , 86 Cal App. 2d 308, 194 P 2d 750 (1948), Department of Public Works v Fllklns, cases. I don't think there is much of any• 411 ni. 304, 104 N E 2d 214 (1952). New York Dock Co v thing to It. Generally, it has not been City of New York, SOON Y 265, 90N E 2d 183 (1949) But such verdicts are sometimes overturned by appellate courts as followed, and most courts now seem to say unsupported See, eg., Boxberger v State Hwy Comm'n, that if there is any right of access the land• 251 P. 2d 920 (Colo" 1953), Burnquist v. Cook, 220 Minn 48, 19N.W. 2d 394 (1945). owner must be paid whether the State or the city owns a fee or just an easement. ""See, e.g., Anderllk v Iowa State Hwy. Comm'n, 240 la 919, 38'5l'^. 2d 605 (1949), Stock v Cox, 125 Conn 405, 6 A. MR. BOOTH. Do you wish to comment 2d 346 (1939), Fleming v State Road Dept., 157 Fla 170, 25 on the situation where a freeway is con- So 2d 373 (1946), SUte ex rel. McKay v Kauer, 156 Ohio St 347, 102 N E 2d 703 (ISBir" 49

structed, where there is no highway pre• MR. LEVIN. For example, I have in viously existing? In a case of that kind mind the State of Illinois where their will you say that the abutting landowner Freeway Act of 1943, I believe it is, automatically acquired a common law says that the State Department of Public right in a common law State of access in Works, has the legal authority by resolu• the event the purchase of that land con• tion to designate pre-existing highways as tained no prohibition against it? freeways and they have taken 600 miles MR. REESE. That seems to be so, of pre-existing roads and declared them yes. Now, whether or not he acquires a to be freeways. Pursuant to such declara• right of access for which payment must tion they have actually put up signs, the be made when it is taken away from him is size of ordinary traffic signs — posted something elsCj but generally speaking, this entire mileage to put the public, per• yes, he does acquire this right of access haps, and subdividers and others who when a road is built adjoining his land or might be prospective owners or operators on his land. Question: Even though the of these adjacent lands on notice. They road was constructed with an access denial put up these signs just indicating that this feature to it? Answer: No, not in that stretch of road has been declared to be a situation if it was constructed as a free• freeway under the laws of the State of way with denial of access. Question: In Illinois and the highway authority should your opinion, would that type of construc- be consulted before proceeding on it. tion in itself prevent the common law abut• Supposing they haven't done anything more ter's right of access springing into being? than that, they haven't gone out and ac• Answer: I should certainly think it should quired any rights of access or anything, and that is in effect what this California now supposing a land owner, an abutter supreme court has held. Question: It's wants to subdivide. Can the State tell the Snyder Case, isn't it? Answer: Yes. him, pursuant to this resolution that he MR. MARTIN. If the road is not built can't provide ten new accesses where he as a limited access highway he acquires only had one. This is all precedent to the right under common law, doesn't he"? their contact with the property owner. MR. REESE. If you would otherwise, Are there any police powers implications, yes. As you would on any public street in other words, would you say that the in that situation and again I suggest that the State has the authority to restrict further answer depends on whether the constitu• subdivision pursuant to this resolution' tion in that particular state contains a provision for damages, for compensation MR. REESE. That's a nice question. for damages or merely for a taking. I think that this much is clear, the State MR. LEVIN. That's a good question under its regulatory powers, police pow• and in further pursuance of that What, ers, does have the right to regulate ac• Professor Reese, would you think is the cess, that is, they can specify the kind of legal effect of the resolution of a State construction. For example, they can re• Highway Commission declaring a pre• quire — and this is, I suppose, abundantly existing road to be a limited access high• clear — that an owner m constructing a way'' Is that just a statement of intention, driveway cannot build an apron out into and as you say, do they have to go back the street over the gutter, that he must and acquire the rights or are there any cut the curb. They can also limit the police power implications that could be number of outlets that any particular invoked? owner may have within reason and then if MR. REESE. I am not, I must con• you go one sfep further and limit all ac• fess, familiar with the particular methods cess, then of course you get into this by which a highway authority, highway problem again. Now Illinois happens to commissioner, highway department, or be one of those States whose constitution director must act or what his authority may provides that a landowner is entitled to be, but if elimination of access is within compensation for damage to his property, his authority as conferred by statute, then and I would suppose that in Illinois the it would seem to me that in these States courts are likely to hold that if all access which compensate only a taking again, is cut off on that street, even though access that that would be all that is necessary — exists from some other direction, that the a declaration, a prohibition of access. owner is entitled to compensation. 50

MR. SIMONSON. Just to clear the rec- then there would be damages, wouldn't ords, you said the State of Illinois had there' posted 600 miles of existing roads. Now I MR. LEVIN. I should think so. I don't would assume there would be some ac- mean to prejudice the highway department cesses on there and if they did close those, of Illinois, but I would be afraid so. 51

Methods Used to Protect, Reserve, and Acquire Rights-of-Way for Future Use in Maryland

LEROY C. MOSER, Right-of-Way Engineer Maryland State Roads Commission

# WHILE the automobile was mvented fore we were able to finish the job of hard just a little over a half century ago, it surfacing our roads from county seat to was destined to inaugurate what has now county seat and from town to town, it was become the world's greatest mdustry — inevitable that there was a need for wid• the highway transportation industry — it ening, straightening, and relocating these was not until the past generation that high• roads. way improvement had progressed beyond Here we had the beginning of the right- the point of getting our vehicles out of the of-way problem; however, it was not then mud. recognized as such but was considered During the early stages of the auto• only as a minor phase of highway construc• motive age, our newly created horseless tion. It was the exception rather than the carriage shared in common with the wagon rule if more right-of-way was acquired and the buggy our century-old, narrow, than that needed for the then proposed winding, dirt travelways. Many of these improvement. During the early part of wagon trails followed the route of more this reconstruction, the abutting property primitive transportation, the path of the owner usually was still expected to do• horseback rider, the trail of the Indian nate the new or additional right-of- way. brave which, in turn, often followed the Quite often, when he refused to donate path of the wild animal in his migration the required right-of-way, the old crooks through the wilderness. It soon became and turns were left m the road alignment evident that this new means of transporta• rather than e}q>end any highway funds for tion would replace the vehicle drawn by land acquisition; nonetheless, most of the Old Dobbin; however, these mechanical property owners still were willing to do• carriages bogged down in the mire of the nate this additional right-of-way as the wagon trail, and we therefore had to set land was usually cheap and the additional about the task of providing all-weather road improvements bettered their highway surfacing on these trails to convert them travels to such an extent that they readily into roads suitable to accommodate this recognized the advantages afforded them new means of transportation. in better motor transportation to market, These improvements generally followed church, school, and to all their economic along the century-old wagon trails within and social activities. a narrow right-of-way, which had either It was during the period between the been established by statute or donated by two world wars that our highway system the adjoining property owner in the interest matured. During this period, our con• of bettering his meager means of travel. struction program created a network of During this phase of road development, just all-weather highways, connecting our as the narrow, winding road was considered cities and towns from the Atlantic to the adequate if it was provided with an all- Pacific and from Canada to Mexico. De• weather surfacing, so was the narrow spite the fact that in this short span of right-of-way, which barely provided space time we had succeeded in creating this for this early road improvement. extensive network of all-weather high• As we paved our roads and lifted our ways, which accomplishment is without transportation out of the mud, the me• world parallel, it soon became apparent chanical improvements in our automotive that a vast portion of these highways were vehicles took on an accelerated pace, and inadequate to carry the ever - increasing in turn, the increase of these vehicles on traffic volumes to which they were being our roads grew by leaps and bounds. Be• subjected. 52

No small part of this inadequacy is cost. In Maryland, during the fiscal years attributable to improper right-of-way of 1951 and 1952, we spent approximately consideration. We not only had those $5% million, which amounted to about 8 cases where the road alignment was tailored percent of the total outlay for highway con• to fit the whims of the donor of the right struction during that 2-yr. period. of way but also other right-of-way con• cessions that made the later improvement Acquisition Qf Highway Protective Ease- more difficult and costly. The most prev• ment Areas. alent, perhaps, was the lack of foresight to provide in the original instance a right- It is essential to not only have an ade• of-way greater than needed for that im• quate width right-of-way, but also to have provement; consequently, great portions proper controls over the right-of-way if the of these highways are cluttered with road• highway improvement is to be protected side ribbon development, both residential from becoming outmoded and obsolete due and commercial, which either abut the to indiscriminate and uncontrolled roadside narrow right-of-way or are in such close development. We are constantly endeavor• proximity that it is impossible to widen ing to develop new methods, devices and the roadbed unless many buildings are techniques to obtain such protection. One demolished or moved back. Such right-of- such new device, recently tried out in way acquisition is a heavy drain on highway- Maryland is the acquisition, through pur• construction funds. In many cases, the chase or condemnation, of easement con• cost involved in such acquisition is so trols over strips 50 ft. wide on each side great that it is preferable to build on a new of the fee-simple right-of-way. We called location. The result is the added cost of these easement strips "highway protective constructing and maintaining a parallel easement areas." facility and the consequential loss of bus• Legal authority for the acquisition of iness and property - value depreciation these easements if found in Section 4A (a) along the original highway, due to the traf• of Article 89B of the Maryland Code, fic diversion to the new facility. Much of which provides among other things that this "marginal disease" would not have "The state roads commission may acquire overtaken these highways if we had rec• by gift, purchase, condemnation or other• ognized the importance of adequate rights- wise, real property or any interest in such of-way in the early stages of our highway property along or near any state highway, development. parkway, or freeway, m order to protect It has only been during the past quarter the highway, parkway or freeway or scenery century that proper importance has been along or near such highway, parkway or given to right of way acquisition. I believe freeway. " that most state highway right-of-way de• The language used in the grant of these partments are not more than 20 to 25 yr. Highway Protective Easement Areas is as old. Ours, in Maryland, was organized follows: in 1932. Prior thereto, most of our right- of-way was not acquired on a scientific And the Grantors do further grant unto the State of Maryland, to the use of the State Roads basis. For the most part, it was handled Commission of Maryland, its successors and by various members of our engineering assigns, any and all rights of the Grantors, staff in connection with their assigned their heirs, successors and assigns, to erect duties. Most of such acquisitions were in and maintain any structure, or part thereof, of the rural areas and usually of minor nature any type (including, but not by way of limitation, due to the designs then in vogue. signs, billboards, pole lines and fences) on or over the area designated on said plats as "High• During the past decade, the acquisition way Protective Easement Area"; also all the of rights-of-way has progressively in• rights of the grantors, their heirs, successors creased to one of major importance in the and assigns, to use said "Highway Protective rehabilitation and e:q)ansionof our highway Easement Area" as an automobile graveyard; facilities. Today, the cost of acquiring also all the rights of the grantors, their heirs, successors and assigns to store any vehicles, rights-of-way is by no means a minor item machinery, materials and/or other chattels or in the over-all cost of highway develop• personal property on said "Highway Protective ment; in fact, in the urban areas on some Easement Area", all to the end that the said sections of our expressways and freeways, "Highway Protective Easement Area" shall the cost may exceed actual construction never have any structures of any kind, whatso- 53 ever erected upon it; that it shall never be used necessary to pay almost 100 percent of for the storage of vehicles, machinery, ma• the fee-simple value for the highway pro• terials and/or other chattels or personal prop• tective easement area and if it was ever erty; that It shall never be used as an automobile graveyard. desired to utilize these strips for actual road construction, it would be necessary to Our original plan was to clear all struc• then acquire the underlying fee before this tures from these protective easement could be done. areas, excepting major structures such as After dropping the plan of acquiring dwellings, commercial buildings, etc. , and highway protective easement areas, it in such cases, negotiate agreements to be was decided that for the remamder of the followed by covenants in the deeds, pro• Baltimore-Washington Expressway project viding that these structures could remain the fee-simple right-of-way width would within the protective easement areas but be increased from 300 to 400 ft. to offset could not be expanded or improved ex• the deletion of these protective easement cept for general upkeep and normal mainte• areas. In so doing, we found that the nance. In the event they should be destroyed right-of-way acquisition was less com• by fire or some act of God, they were not plicated and but little more costly to to be replaced within the protective ease• secure. Of our then-planned dual-high• ment areas. way projects on which it had been pro• Almost from the very beginning, we posed to acquire these highway protective encountered difficulty with this type of easement areas, other than the Baltimore- acquisition. The question arose as to the Washington Ejg>ressway, the- fee-simple market value of property subject to this right-of-way was designed as 150 ft. m protective easement, especially in those width. Although we did not immediately cases where we proposed restrictions on increase the fee-simple right-of-way width the improvements located thereon. Mort• on these projects, to offset the deletion of gage companies, banks, and other real- the highway protective easement areas, we estate lending agencies took the position have, since that date, increased these that the collateral value of such property fee-simple widths to 200 ft. and recently, was practically nil. If the main improve• on certain projects, are proposing 250 ft. ment on the land was involved in the pro• tective easement, they had no desire to Roadside Zoning continue a mortgage on the property in any amount. Many of our real-estate ap• Roadside zoning, preferably at the state praisers and brokers took a similar view. level, would accomplish most of the high• way protection for which the highway pro• We soon realized that our plan of per• tective easement area was created; the mitting certain major improvements within advantage being that such control would the protective easement area, with restric• be by regulations and restrictions imposed tions imposed thereon, was not practicaL under the police power as contrasted to In a few instances, we deleted this protec• payment for such control by acquisition of tive easement around improvements and, property rights through the power of in all other cases, acquired the area on the eminent domain. Yet, in most of the basis of demolishing or removing all struc• states, as is the case in Maryland, there tures therefrom. In no case did we carry is no state-wide roadside-zoning author• through with our original plan of permitting ity. Several efforts have been made to have certain major improvements to remain the General Assembly of Maryland set up within the protective easementwith restric• such an authority, but each time it has tion imposed thereon. failed to meet with legislative approval. After acquiring these easement areas Only six of the 23 Maryland counties have on two projects, amounting to approxi• zoning statutes. With but two exceptions, mately 7 /4 mi. for the Upper Marlboro By• these are the rather urban counties sur• pass of the US 301 relocation and approxi• rounding the City of Baltimore and the mately mi. for the Baltimore-Wash• District of Columbia. ington Expressway, beginning at the Balti• more city line and extending toward Wash• Obtaining Dedications Through Subdivision ington, we decided to give up the noble ex• Control periment as not being very practical. We had found that, in most cases, it had been Much can be accomplished through 54 zoning and planning bodies m not only quired by the state roads commission establishing desirable building setbacks, merely toprovide for the original improve• which in a sense provides space free of ment. The Mary land National Capital Park structures for limited future roadway and Planning Commission has obtained expansion, although this is not the real many miles of additional dedications along purpose of such setbacks, but also in ob• these roads. With but few exceptions, taining outright dedications and reserva• stretches of such dedications exist along tion of land for new roads and the widen• every state road in the area. When these ing of existing roads to provide for antici• roads are ready for widening, the right- pated traffic needs. of-way problem is greatly simplified; Great accomplishments have been made usually the dedications are sufficient with• in this fi6ld in the urban areas of Mont• out further acquisition, except along those gomery and Prince George's counties abut• sections where no subdivisions have as yet ting the District of Columbia, known as been created. Hundreds of thousands of the Maryland-Washington Regional District. dollars are thus being saved for the tax Prior to World War I, this area had been payers which, otherwise, would have to be largely rural except for scattered com• e}q)ended for right-of-way acquisition. munities, but after the close of that war, This commission also has been very the building boom in the nation's capital helpful in reducing rights of way costs by that followed began to spill over into the careful review of applications for re-zon• Maryland countryside. ing, particularly in areas where high type To the greac credit of local and state roads are contemplated. officials, they soon foresaw the implica• tions of this growth and the planning prob• Reservation of Land for Highway Purposes lems with which they were confronted. They decided to do something about it, The Maryland National Capital Park and and as a result, in 1927, the Maryland Planning Commission also helps to pro• General Assembly created the Maryland- tect tentative highway routes by persuading Washington Metropolitan District, con• land owners to delay plans for subdivisions sisting of those portions of Montgomery until these routes can be tied down and and Prince George's counties, adjoining proper reservations made for these pro• the District of Columbia, which was rapidly posed highways. Quite often, right-of-way growing into an urban area. This district takmgs for such projects are rather sub• has been expanded from time to time, and stantial, and the owners naturally are not in 1943, a still larger area was created and always expected to dedicate such areas as designated as the Maryland-Washington a concession for subdivision plat approval, Regional District. The 1927 Act also especially in the case of the expressway, created the Mary land National Capital Park freeway, or controlled-access highway, and Planning Commission as the official where the abuttmg land receives no direct body charged with the technical direction frontage benefit; nevertheless, subdivision of the park development and regional plan• plat approval must often be given before it ning of this district. IS practical to acquire these rights-of-way, This commission, through its sub• either through negotiations or condemna• division control, before ^proving sub• tion proceedmgs. In such cases, we have a division plans, requires that not only statutory provision authorizing reservation sufficient dedications be made for ade• of land for highway purposes by the National quate streets within the subdivision, but Capital Park and Planning Commission if also that sufficient land be dedicated along located in the Maryland-Washington Region• existing streets, roads and highways, on al District. which those subdivisions border, to provide This authority is found in Section 2-1, for future widening to handle anticipated Chapter 992 of the Acts of 1943, as amended traffic needs, as well as parallel serv• by Chapter 582 of the Acts of 1949 of the ice roads when these are determined Maryland General Assembly, which pro• necessary. vides among other things as follows: In this area, most of the state roads For the reservation of lands for traffic, were constructed many years ago on nar• schools and other public buildings and for parks, row rights-of-way, which were either as• playgrounds and other public purposes, pifovided sumed from the counties, or widths ac• no reservation of land for traffic, recreation 55

or for any other public purpose, as herein pro• (e) Declaration of Public reservation shall vided, shall continue for longer than three years be by resolution of the Commission. Notice of unless the public authority, charged with making the same shall be carried once each in two provisions for traffic, recreation, schools or newspapers of general circulation in the County other public facilities, shall have acquired the affected. Certified copies of the resolution same or shall have instituted proceedings to shall be sent to the property owner and to the acquire the same within such period, and pro• agency concerned with acquisition. vided further that such property so reserved for (f) Final subdivision plans for the property public use, as herembefore provided, shall be shall be m strict conformity with the preliminary exempt from all State, County and local taxes plan as to public reservation. durmg such period. (g) Durmg the reservation period, no build• ing or structure shall be erected upon the land To administer the provisions of this law so reserved. No trees, top-soil or cover shall pertaining to the reservation of land for be removed or destroyed; no grading shall be done; no storm dramage structure shall be so public use, the Maryland National Capital built as to discharge water on the reservation, Park and Planning Commission adopted the nor shall any land so reserved be put to any use following regulations, which are quoted whatsoever, except upon written approval of the from their subdivision regulations as amen• Commission. ded June 21, 1951: Any violation of these provisions shall be deemed a misdemeanor, as defmed in Section (a) The Commission shall refer all pre- 2Z of the Maryland-Washington Regional Dis• llmmary subdivision plans to Its General Plan trict Act, Chapter 992, Laws of Maryland, or parts thereof, adopted or proposed or studies 1943, as amended. Such violation shall be sub• related thereto, to determme the need for re• ject to all penalties provided for therem. serving for public use any of the land included The Commission shall post properties so m the said prehmmary subdivision plan. Reser• reserved with an appropriate sign, warnmg vations may be required for: highway or street agamst violation and the penalties therefor. rights-of-way; public buildmg sites; parks- (h) The Commission shall advise taxmg and except park lands to be acquired under the pro• assessmg bodies of all public reservations, and visions of the Act of Congress of the United such public reservations shall be exempt from States known as Public Act 284 of the 71st Con• all State, County, and Local taxes durmg the gress, approved May 29, 1930 (46 Stat. 482), reservation period. popularly known as the "Capper-Cramton Act" (1) If, at the end of the reservation period, as amended by Public Law 699, 79th Congress, the land so reserved is not acquired for public approved August 8, 1946--playgroungs, or other use or if proceedmgs have not been initiated, recreation areas; or other public purposes. the Commission shall declare the reservation (b) If a reservation appears desirable, the void, advertismg such action in two newspapers Commission may refer the plan to the public of general circulation m the County affected. agency concerned with acquisition for its con• (]) The cancellation of a prelimmary sub• sideration and report. The Commission may division plan, as provided for in Section 4(b), propose alternate areas for such reservation shall not affect a reservation if, before the can• and shall allow said public agency thirty (30) cellation date, a public agency has begun pro• days for reply. The agency's recommendation, ceedmgs for acquisition of the subject property if affirmative, shall include a map showmg the or has provided for same m its budget for the botmdaries and area of the parcel to be reserved ensumg fiscal year. Lackmg such action, the and an estimate of the time (not over 3 years) reservation, too, shall be deemed cancelled but required to complete the acquisition. the right to re-establish the same shall be ex• (c) Upon receipt of an affirmative report, pressly reserved." the Commission shall notify the property owner and, except as provided in Section 12(d), shall Although this technique of land reserva• establish such reservation, with or without tion has not been used extensively to date, modifications, concurrently with the approval it IS anticipated that in the extensive high• of the said preliminary subdivision plan. way development nowbemg planned for the (d) If the location of the proposed reserva• Maryland-Washington Regional District, tion differs substantially from that shown on the its use will be rather extensive. A typical general plan or parts thereof previously adopt• ed, the Commission shall hold a public hearmg example of the reservation plat, filed in in the County (or Counties) affected. If in both the case of a state highway, is shown in Counties, said hearings shall be held on suc• Figure 1. cessive days. Fifteen (15) days notice of public hearmg Acquisition of Access Rights shall be advertised m two (2) newspapers of general circulation in said County (Counties). Perhaps the most far reachmg of all Hearings may also beheld by the Commission in other cases deemed appropriate, subject to devices conceived during recent years to the same conditions of notice set forth above. protect and preserve our modern "super• highway" has been the development of the 56

limitation and control of access rights, the napolis-Washington Expressway and the device through which we protect our modern Baltimore-Harrisburg Expressway; and in highways against roadside friction and con• the "controlled-access" class, the Balti• gestion through the acquisition of the rights more-National Pike (Baltimore to Fred• of ingress and egress of the abutting prop• erick) , the approaches to the Chesapeake erty owners. There are various degrees Bay Bridge and State Route 5, from the of this denial of access: (1) The freeway District of Columbia toT.B., Maryland, and expressway, where all access is denied have been put under construction and have to the abutting property, all intersecting advanced to various stages of completion. roads either carried over or under the The Baltimore County Beltway and the Inter-

RESERVATION OF LAND FOR FIHJC USE I FOR HCHVWr PURPOSES) (CROSS-COUNTY MBHWOT) RESERVATION t^R«-H-4(a

THE MARYUIMO-MTOUL CARTAL PARK a PL/UWMO COMMISSION

Figure 1. mam facility, and access permitted only county Beltway m Montgomery and Prince through traffic interchanges and (2) the George's counties are now m the planning limited expressway and arterial highway, stage, and other limited- and controlled- where all access is still denied to the abut• access projects are being considered. ting property; however, many of the lesser When this vast network of expressways and crossroads, as well as frontage and service controlled-access highways is complet• roads, are connected to the main facility, ed, Maryland will have a system of this type serving as limited access for the abutting of superhighway, probably, second to none. property, and still others, where individual We also acquire the denial of vehicular entrances to the abutting property are also access at major road mtersections and permitted at mfrequent intervals. other points of traffic friction on many of Maryland embarked upon its expressway our primary roads in Maryland, which fall and controlled - access arterial - highway short of the expressway and controlled- program in 1947. Since then, in the "ex• access arterial-highway type, but which pressway" class, the Washmgton National carry heavy volumes of traffic. Pike (Washington to Frederick), the Balti• We now have had about 5 yr. of experi• more - Washington Expressway, the An- ence in acquiring access rights in Maryland. 57

It has been a controversial issue not only providing ingress and egress for the abut• with the property owners and other interests ting property, must be permitted on the directly affected by such acquisitions but conventional type of highway when no access also with many of our citizens, both in rights are acquired. However, if these official and nonofficial capacity. I'believe entrances are not subject to control as to this is mostly because this method of high• design and location, they can be a source way protection is new, revolutionary and of unnecessary traffic friction. This con• little understood. The Maryland public m trol can be exercised by regulations through general usually realizes the convenience use of the police power. and safety of traveling on the limited- and For many years the Maryland State the controlled-access highway; however, Roads Commission has endeavored to con• it has required education to convince them trol vehicular entrances to all state high• that roadside exploitation by the abutting ways by requiring a permit before any property owners is without justification, entrance can be constructed. Prior to 1951, since the highways are paid for with reve• there was no statute setting forth such nues collected from the road users and the authority and, in some instances, property abutting property owners contribute only owners questioned these regulations. The to the cost thereof to the extent of which state roads commission then sponsored . they are road users. Although there still legislation which would have given authority remains much opposition to be overcome, to regulate all vehicular entrances to all it is quite evident that the vast majority of state highways; however, this proposal met our people are recognizmg not only the with considerable opposition in the legisla• desirability but the urgent need for this ture. In order to secure passage, it was type of highway and the opposition is di• necessary to accept a modification of the minishing. proposed legislation. As passed, the law gave the state roads commission authority Sight Control At Road Intersection to regulate entrances, both existing and new, mto commercial and industrial properties The road intersection is the most criti• on state highways carrying an average traf• cal location on our highways from a traffic fic volume of more than 2,000 vehicles per safety point of view. There has always day. Although this law does not provide been a tendency, especially for busmess for control of farm and residential entran• enterprises, to crowd improvements as ces, nor any control on those few of our close to the corner of the road intersection state highways carrying less than 2,000 as possible. These improvements block vehicles per day, it does provide authority from the view of the motorist the oncoming for control where it is most needed. It is cross traffic, thereby creating a blind and the commercial and industrial entrance on hazardous intersection. our heavy traffic volume highways that cre• ates the greatest problem. We hope that We, in Maryland, have for a number of this law eventually will be amended to pro• years endeavored to reduce such hazardous vide for control of all entrances on all state intersections by the acquisition of adequate highways, irrespective of traffic volume or sight flares. In addition to the normal- type of property. width right-of-way, we also acquire, m fee simple, triangular areas at each corner of the intersections. The base of these Acquiring Land For Future Construction triangles correspond to a line drawn from the point of curve to the point of tangent of In some jurisdictions, there is a lack the turning lanes. When the plans call for of legal authority to condemn rights-of- channelization of an intersection, the design way for future proposed projects. This of the sight flares remain the same, except was the situation in Maryland before 1951. that the right-of-way taking is increased. Prior thereto, the state roads commission, We are confident that sight-flare acqui• while free to accept by gift or to negotiate sition results in greatly reduced traffic the purchase of rights-of-way for planned hazards at road intersections. future projects, could not condemn for such rights-of-way. To remedy this situation. Entrance Control Section 4A (a) of Article 89B was repealed and reenacted with certain amendments, Vehicular entrances to the highway. among which was authority to condemn for 58 proposed construction. This article and sation are made by the road contractors section of the code, is the same as before because of such delays. referred to as authority to condemn real There is also the public -relations aspect property, or any interest in such property, to be considered. Through our right-of- along or near any state highway in order to way negotiation contacts, perhaps more so protect the highway. than through any other function, are the Maryland has for some time realized the public relations of our highway depart• advantage of adopting a program which will ments molded. To give up one's property permit the acquisition of right-of-way well for public improvement, naturally is not in advance of actual construction date. In pleasant for the persons affected and we, the current fiscal program, approximately therefore, should follow practices which $10 million has been ear-marked for sur• will subject these people to the least pos• veys, preparation of plans and the acquisi• sible inconvenience, which is not only the tion of rights-of-way for approximately decent thing to do, but to do otherwise in 150 mi. of proposed expressways and con- all probability will seriously damage public trolled-access arterial highways which will relations for the entire highway program. not be programmed for actual construction until a later date when funds become avail• Conclusions able. This is a progressive step in the right direction, but from the right-of-way In summing up my thoughts of desirable acquisition point of view the ideal situation methods to protect, reserve and acquire will not be reached until the entire con• rights-of-way for future highway use, I struction schedule is programmed in this propose: sequence. 1. That emphasis be placed on highway The advantages of acquiring rights-of- right-of-way protection through roadside way well ahead of actual construction are zoning regulations rather than acquiring multifold. We right-of-way men are all costly and madequate easement rights too aware of the madequate time usually through emment domain. allotted to secure rights-of-way. In fact, In the states where adequate control it IS the exception rather than the rule if we cannot be exercised through roadside zon• are not acquiring the rights-of-way "under ing at the county or local level, that zoning the shadow of the power shovel", so to statutes be enacted setting up a state au• speak. The old adage that haste makes thority, preferably under the state highway waste most certainly is true m right-of- department, to regulate roadside zoning way acquisition. along the entire state highway system. Practically every right-of-way acqui• 2. That efforts be made to provide all sition presents a different problem, neces• zoning bodies with adequate authority, sitating special study, to arrive at the fair through their subdivision regulations, to and just compensation to which the property provide for dedications along the existing owner is entitled; and the determination of streets, roads and highways, as may be adjustments to restore damaged property needed for the ultimate improvement as a to serviceableness and thus reduce rights- requisite to subdivision plat approval. of-way costs, all of which consumes time. 3. That adequate authority be provided, Adequate time to study the problems en• at the state level, to reserve land for high• countered, make intelligent appraisals and way use between the time that definite align• carry on negotiations, inevitably reduces ment of the highway is established and the right-of-way costs. When property owners lapse of time consumed in the preparation are forced to give up their homes on very of detailed construction plans, rights-of- short notice with inadequate time to re• way plats and other details to permit the establish themselves elsewhere, it is us• acquisition of the lands through eminent ually necessary to pay premium prices, or domain procedure. I believe that the tech• else acquire the property through condem• nique used by the Maryland National Capital nation proceedings; the cost of which pro• Park and Plannmg Commission would be a ceedings increases the right-of-way cost. good criterion as a guide for such an When road contracts are awarded before authority. buildings are vacated and can be removed, 4. That the acquisition of access rights the progress of the project is oftenretarded, not only be used as a means of protecting and invariably, claims for extra compen• our freeways and expressways against road- 59 side traffic friction and indiscriminate de• 8. That emphasis be placed on acquir• velopment, but this technique be more ex• ing right-of-way widths not only to provide tensively used along other main high traffic for present and future contemplated con• volume highways. I also believe that more struction, but also to provide widths which effort should be exerted to educate the pub• will protect the highways from closely lic about this subject; what it means, what cluttered margmal development, and will it can accomplish and how it will protect protect property values abuttmg the highway and preserve the gigantic mvestment m our through the minimization of noise, dirt, modern highways. fumes and other objectionable consequences I also strongly recombiend that the of the highway which are accentuated when limitation and control of access be applied the roadside improvements are located m to all our city and town by-passes so it close proximity to the traveled way. will not be required later to build a bypass 9. That in the programing of highway to bypass a bypass. construction, planning be scheduled on the 5. That those states not having adequate basis of completing the surveys, prepara• entrance regulations, formulate such regu• tion of construction plans, right-of-way lations and, if necessary, amend or pass plats and the acquisition of rights-of-way laws to provide for such control under the well in advance of construction date; pref• police power. erably, at least the year preceding the be• 6. That we not only provide for sight ginning of actual construction. flares through rights-of-way acquisition, but also provide for such acquisition when To acquire rights-of-way well m advance dedications are obtained through subdivi• of construction will no doubt necessitate sion control. special appropriations before funds are 7. That those states, where there is no available for actual construction of the legal authority for the condemnation of project. The use of a "right-of-way re• rights-of-way for future proposed con• volving fund" IS suggested as perhaps the struction, have their laws amended to pro• most appropriate means to assure that funds vide for such procedure. will be available for this purpose. 60

Reserving Lands for Street and Highway Improvements

R. B. SAWTELLE, Right-of-Way Engineer, State Highway Commission of Wisconsm

• THIS is a report of the means of re• towns have adopted such ordinances in serving lands for street and highway im• Wisconsin to date. provements adopted and used in Wisconsin, In the case of county zoning ordinances, as prescribed today by the Wisconsin the whole ordinance, including the setback Legislature. I present this report to sug• lines, is administered by an official des• gest various means of accomplishing a ignated by the county board and enforced much-needed control over adjacent lands by him through the office of the district for the preservation of the usefulness of attorney. our highway investments and to economic• Where a separate highway setback ordi• ally reserve lands for future highway nance is established, it is administered by expansion. the county highway commissioner by means No claim is intended to infer that our of a system of building permits which must methods are the best. I do, however, be applied for and issued before any build• take pride in the fact that Wisconsin is ing construction can be undertaken. If the one of the several states that have pro• proposed construction complies with the vided the highway authorities or the local regulations established in the ordinance, units of government with at least a portion the county highway commissioner issues of the desired means of solving this prob• the permit; if it does not, he must deny lem. Provision has been legislated for the permit, and if the applicant so desires, the control of land use and the establish• he may take the question to the board of ment of setback lines by local units of appeals. If he is dissatisfied with the government. The state highway commis• action of the board of ^peals, he may sion has been authorized to control ac• take the action into court. cess, control platting adjacent to state If the county highway commissioner trunk highways, acquire rights to restrict finds that there is a violation of the set• development, and sell excess properties back ordinance, such violations are re• with reservations to protect the highway ported to the county highway committee. improvement. The ordinance provides that the highway committee in such cases shall promptly ZONING file a complaint and report the same to tlie district attorney. It then becomes The ways and means for zoning and the duty of the district attorney to pros• establishing building setback lines are ecute such violation. legislated in Wisconsin under one act Thirteen counties have adopted com• as found in Section 59.97 (Stats.). Per• plete zoning ordinances under the pro• mission is given the counties to make pro• visions of Chapter 59.97. However, only visions for the establishment of zoning 106 out of a possible 244 towns in those and setback lines by ordinance and to en• counties have reported the adoption of the force any ordinance drafted under that county ordinances. These 106 towns section. The ordinance does not become represent 8 percent of the 1,280 towns in effective in any town until approved by Wisconsin, showing that just the surface the town board. has been scratched in the establishment Any town in any county not having ad• of complete zoning since the date that opted a county zoning ordinance as provid• statutory authority was provided in 1929 ed by Section 59.97 may adopt such reg• and adopted by a county for the first time ulations or restrictions as to land use and in 1938. determine locations of buildings with Two additional counties, Brown and respect to adjacent highways. Thirteen Portage, with similar ordinances being 61 proposed by Wood and Dodge counties, mission may deem necessary or desirable. have adopted county-wide setback ordi• The types of control authorized by the nances that are separate and apart from legislature include the following rights: the county zoning ordinances. However, (1) to eliminate intersections at grade of they are enacted under the same statutory controlled-access highways with existing authority as are the zoning ordinances. highways or streets, by grade separation The general setback regulations in such or service road or by closing off such ordinances are as follows: roads and streets at the right-of-way boundary line of such controlled-access State trunk highways, 100 ft. from highway, and to divide and separate any centerline controlled-access highway into separate County trunk highways, 75 ft. from roadways or lanes by raised curbings, centerline dividing sections, or by signs or markers, Town roads, 55 to 65 ft. from centerline or to execute any construction necessary in the development of a controlled-access The distances increase where local sit• highway, including service roads or sep• uations warrant or where right-of-way aration of grade structures; (2) to con• widths are greater than 100 ft. Variations sent or approve, only if the public interest in setback restrictions are generally de• shall be served thereby, to the connection termined by the joint action of the county with a new public street or highway or highway commissioner and the county high• private driveway; (3) to prohibit entrance way committee with the advice and counsel upon or departure from or travel across controlled-access highways, or to or from of the state director of regional planning. abutting lands except at places designated and provided for such purposes; (4) to CONTROLLED ACCESS assume that the owners or occupants of abutting lands shall have no right or ease• The right to control the location and ment of access by reason of the fact that design of entrances to state trunk highways their property abuts on the controlled- in order to avoid the jumble of side roads access highway or for other reason, ex• and private entrances encountered today cept only the controlled right of access and is an important phase in modern highway of light, air, or view; (5) to permit a design. This right has been provided by crossing where property held under one legislative authority to the Highway Com• ownership is severed by a controlled-ac• mission of Wisconsin to: (1) hold a public cess highway, to be used solely for travel hearing in the local courthouse, or other between the severed parcels, as long as convenient place, to hear arguments pro title is vested in the same owner; (6) to and con to the proposal of declaring a enter into agreements between the com• portion of the rural section of the state mission and governing bodies of a city, trunk highway system, not to exceed a town, village, or the federal government total of 500 miles for the state, as a con- respecting the financmg, planning, estab• troUed-access highway; (2) determine if lishment, improvement, maintenance, the findings are such that an average traf• use, regulation, or vacation of controlled- fic potential is in excess of 2,000 vehicles access highways or other public ways in per 24-hr. day and the necessity exists their respective jurisdictions; and (7) in the interest of public safety, conven• to prohibit the use of property acquired ience, and the general welfare (the Com• for or designated as a controlled-access mission may then make its finding, de• highway by commercial enterprises. termination and order, specifying the character of the controls to be exercised); Penalties for unlawful use of highways (3) record a copy of the order with the may provide for fines of not more than register of deeds, file a copy with the $100 or imprisonment for not more than 30 county clerk, and have it published in the days, or both such fine and imprisonment. same newsp^er in which the notice of This control was authorized by legisla• public hearing was published, after which tion in 1949, and since that time approx• the order shall become effective; and (4) imately 260 mi. of state trunk highways use its police power to regulate, restrict, have been declared as controlled-access or prohibit access to or departure from a highways by the commission. There are controlled-access highway as the com• only 240 mi. left to control under the 62 present law. The restricted limitation of shall be reasonable under the particular 500 mi. may soon be revised to extend the circumstances." length now that the trial period shows this The statutes have not been construed as type of control to be highly successful. providing for reservation of rights-of-way for future improvement, although in a CONTROL OF PLATTING reasonable number of instances the sub- divider has dedicated nominal additional As our state trunk-highway improve• width for street or highway purposes. ments are developed, particularly in con• There are also a reasonable number of gested areas, land platters are seizing instances where we have secured the sub- the opportunities presented in platting out• divider's cooperation in establishing a lying lands and providing the owners of setback line on the plat, where none is so homes in these plats with quick access established by local ordinance. to the central communities over the new Primarily it is the commission's ob• highway. Examples can be presented to jective to minimize the number of direct show where this land platting provides accesses between the highway and the abut• numbers of individual lots abutting on the ting platted property. This has been ac• new highway, with each lot, when developed complished by having the subdivider pro• with a house or business structure, re• vide a dedication for a service road along quiring ingress and egress to the state the highway or an arrangement of interior trunk highway. These entrances cause roads to serve the property and, by specific hazardous conditions and also restrict the restrictions indicated on the plat, stipulate proper functioning of drainage ditches. that ingress and egress between certain In order that such hazards and restric• lots and the state trunk route is prohibited. tions be held to a minimum, the Wisconsin In general, Wisconsin has had little legislature has provided authority for the opposition to the administration of this state highway commission to approve plats law. Most platters or subdividers have that abut a state trunk highway or con• been cooperative and satisfied with any necting street. In the interest of safe restrictions or recommended revisions access from such plats, they should be which have been proposed, imposed, or made so as to be as safe as is practical suggested by the commission. The sur• under the particular circumstances. Where veyors and subdividers are aware of the future highway plans affect the area, the commission's problems and the intent or platting should not conflict. Such an op• purpose of the statutes. portunity to review aplat in its preliminary The law is weak in one respect: a plat stage allows a check on the width of the is not subject to approval by state agencies right of way stated on the plat and a cor• if the subdivision contains less than five rection if it is found to be in error. It lots. The result is that owners can sub• provides an opportunity for the platter to divide the land each calendar year into acquaint himself with the proposed high• four lots or less and sell them by metes way improvement or possible future in• and bounds description, and so circumvent crease in right-of-way width to provide the law. We have no means of knowing for additional improvement of the highway how far this practice may be followed facility needed for a potential increase in throughout the state. traffic and the chance to revamp his plat accordingly. DEVELOPMENT RESTRICTION This means of controlling the type and design of plats adjacent to state trunk high• The acquisition of rights to control ways is essentially governed by the legisla• development is possibly the most eco• ture as follows: "To promote the public nomical and favorably accepted means of safety and convenience, and in the interest reserving lands for subsequent highway use of the general welfare, all land divisions or for the protection of the investment in shall be so designated as to provide for the present public improvement. It takes the safety of entrance upon and departure into consideration the right of an owner to from the abutting highways or streets and use his property in any manner consistent for the preservation of the public interest with zoning or setback regulations, deed and public investment in such highways restrictions, and lawful use, by paying and streets, insofar as such provisions him for the loss of such privileges. 63

It is a right which may be acquired 1. No building or premises shall be wherever a state is authorized to acquire used and no building shall hereafter be "any rights or interests in land" needed erected or structurally altered except for for highway purposes. one or more of the following uses: (a) Section 84.09 (1) Wisconsin Statutes single family residences or tracts of not reads: "The state highway commission less than 5 acres; (b) general farming, may acquire by gift, devise, purchase or including farm buildings, except fur farms condemnation any lands for establishing, and farms operated for the disposal of laying out, widening, enlarging, extend• garbage, rubbish, offal, or sewage; (c) ing, constructing, reconstructing, improv• telephone, telegraph, or electric lines ing, and maintaining highways, streets, or pipes or pipe lines or radio relay and roadside parks which it is empowered structures for the purpose of transmitting to improve or maintain, or interests in messages, heat, light, or power: (d) lands in and about and along and leading to uses incident to any of the above permitted any or all of the same. " uses, including accessory buildings; and Where the controlled area is a fairly (e) any use existing on the premises at the narrow strip and no immediate plans for time of the execution of this instrument; improvement are contemplated by the existing commercial and industrial uses owner, the cost of these rights varies from of lands and buildings may be continued, , $1 to $1,700 per parcel, with the majority maintained, and repaired, but may not be of easements costing approximately $150 e^^anded, nor shall any structural altera• per parcel. tion be made. This restriction accomplishes the f oUow- 2. No dump of ashes, trash, saw• mg: (1) controls the location of billboards dust, or any unsightly or offensive mate• where such control is deemed necessary or rial shall be placed upon such restricted advisable; (2) provides for land use not area except as is incidental to the occupa• detrimental to the present and future tion and use of the land for normal agri• needs of the highway facility: (3) provides cultural or horticultural purposes. for future acquisition of unimproved lands 3. No sign, billboard, outdoor ad• for highway purposes at a considerable vertising structure, or advertisement saving over the cost of improved lands: of any kind shall be erected, displayed, and (4) provides for horizontal vision at placed, or maintained upon or within the intersections with other highways or restricted area, except one sign of not private entrances or. on the inside of more than 8 sq. ft. in area to advertise curves and still allows the land to be used the sale, hire, or lease of the property or for lawns, pasture, or low-standing crops. the sale of any products as are produced Another type of development control upon the premises. recently used in Wisconsin was the ac• 4. The conditions of this easement quisition of scenic rights in connection with shall not prevent any permanent exca• roadside control of land use on the Missis• vation or work necessary to the occupation sippi River National Parkway. or use of the restricted area for purposes The commission desired to preserve, of the permitted uses. insofar as reasonably possible, the natural 5. No trees or shrubs shall be removed beauty of the roadsides and to prevent any or destroyed on the land covered by this unsightly developments that would tend to easement, except as may be incidental to degrade the character of the project as the permitted uses, constructed or result in danger to travel 6. The grant of such easement does on the highway and to that end to exercise in no way grant the public the right to enter such reasonable controls over the lands such area for any purpose. within a restricted area of 350 ft. each side of the highway reference line as would be necessary to accomplish such objectives. ACQUISITION OF ENTIRE PROPERTIES The conveyance of such rights by the AND THE SALE OF EXCESS owner includes an easement and right in perpetuity to any and all portions of real Statutory authority for the sale of ex• estate within said strips designated as the cess highway right of way is found in "restricted area" within which: Section 84.09 (Wis. Stats.) as follows: 64

After establishment, layout and completion of lying fee owner, but if a fee title is held by such improvements, the commission may convey the public, the transfer may be made to as hereinafter provided such lands thus acquired and any successful purchaser; this determines not necessary for such improvements, with reser• vations concernmg the future use and occupation of whether the sale is to be private or public. such lands so as to protect such public works and 5. In Wisconsin, the majority of its improvements and their environs and to preserve rights-of-way are held by the local county the view, appearance, light, air and usefulness of highway committee m the name of the coun• such public works. ty, in trust for the state. Subject to the approval of the governor as herein provided, the highway commission is authorized Therefore the next step is to transfer and empowered to sell at public or private sale title to the state according to Sec. 84.09 property of whatever nature owned by the state and (3) (b): "Any property of whatever nature under the jurisdiction of the highway commission acquired in the name of the county pursuant when the commission shall determine that such property is no longer necessary for the state's to this section or any predecessor shall be use for highway purposes. The commission shall conveyed to the state without charge by the present to the governor a full and complete report county highway committee and county clerk of the property to t>e sold, the reason for the sale in the name of the county when so ordered and the minimum price for which the same should by the commission." This is accomplished be sold, together with an !^)plicatlon for the gov• ernor's approval of such sale. The governor shall by a formal order being issued by thecom- thereupon make such investigation as he may deem mission and a certified copy forwarded to necessary and approve or disapprove such applica• both the county highway committee and the tion. Upon such approval and receipt of the full county clerk advising them that a represen• purchase price, the commission shall by appro• tative of the division office will present, in priate deed or other instrument transfer the proper• ty to the purchaser. The funds derived from such person, a quitclaim deed for execution sale shall be deposited In the appropriate highway within a few days. fund, and the expense incurred by the commission 6. A quitclaim deed describing the in connection with the sale shall be paid from such fund. parcel origmally acquired m the name of the county is prepared in the main office A declaration of excess property may and IS forwarded to the division right-of- result from two conditions: (1) where way engineer with a copy of the commis• the purchase of the original right-of-way sion's order. He is requested to attend to mcluded an area which could either be held the execution by proper county off icials and for public purposes or determmed as no supervise its acknowledgement and com• longer needed and (2) where adjacent, old pletion, after which it is to be forwarded right-of-way is automatically retained by to the main office for acceptance by the statutory provision as a portion of the new commission. right-of-way and an adjacent owner offers 7. Upon receipt of the executed deed to purchase a portion not needed for the the following action is taken at a formal improvement. meeting of the commission: (a) approve The procedure necessary for the sale of and accept the deed from the county; (b) excess property is long and cumbersome. determine that a specified portion of the To demonstrate, the steps are as follows: property is no longer necessary for the 1. Either an offer is received from one state's use for highway purposes; (c) de• or more individuals or the sale is pro• clare that such portion is excess property posed by the commission. and subject to sale pursuant to statutory 2. An investigation is made by the di• provisions; (d) state that a full and com• vision office or the landscape engineer to plete report of the portion to be sold and determine whether or not the parcel should the reason for the sale, together with an be retained for highway or park purposes application for approval, shall be sub• or is needed by the Maintenance Depart• mitted to the governor, (e) determine the ment for material or equipment storage. mmimum price of the parcel; and (f) de• 3. A preliminary report from the di• termine what restrictions and conditions vision office is presented for informal ap• shall be incorporated in the deed to the proval by the commission, and if the pro• successful purchaser. posed sale is in the best interests of the 8. The accepted quitclaim deed from public, the division office is so notified. the county is returned to the division office 4. If the interest in the parcel, as held for recording with the local register of by the state, is an easement, the rights deeds, and the recorded instrument is then held can be transferred only to the under• filed in the mam office. 65

9. A letter is prepared and sent to the conducted by auction. As an example, we governor to comply with the statutory re• encountered a problem in our negotiations quirements and the above described action for a right-of-way on relocation where a taken by the commission. 300-ft. strip ran diagonally through two 10. Upon receipt of the governor's ap• adjacent farms and required moving or proval to the sale, the division right-of- purchasing the entire set of buildings on way engmeer is notified to proceed with one of the farms. Parcel 17 contained the the sale. If it is to be private, the re-- buildings and Parcel 16 was land only. maming steps are simple. A quitclaim An appraisal of the land and damages deed to the purchaser is executed by the was obtained in the amount of $25,334 for commission and offered upon receipt of both parcels, which included the cost of payment m full. The transaction is there• 26.16 acres, 415 rods of new fencing, upon completed. If the sale is to be public, moving seven buildings, replacing a well additional steps are required. and two concrete silos, and severance 11. A determination is made as to the damages. type of sale, either by sealed bids or auc• The owners of both parcels refused to tion. If sealed bids are to be received, sell the strips needed for the right-of-way. the sale is advertised, and at the time and Refusal to deal by contract would normally place designated the bids are opened and have required the condemnation of the par• read publically and the results reported to cels andpossible subsequent court appeals. the commission, who accepts or rejects the It was realized that the cost might reason• highest bid. ably have been determmed by a jury to re• 12. If the sale is to be conducted by sult in payment of an amount approximating auction, the services of an auctioneer are the value of the entire farm of 100 acres in contracted. The date of the sale is deter• the case of Parcel 17. The severance mined, advertisements are placed in local damage to 10 acres by Parcel 16 to a 60- newspapers, and terms for the sale are acre farm, might be determined by a jury determined. to be much higher than the appraisal. 13. The bidder offermg the highest It was therefore decided to appraise the price above the minimum established price value of the 100-acre tract and that portion is the successful purchaser. of the 60-acre tract included in Parcel 16 14. A quitclaim deed is executedbythe and severed by it. The total value of the commission to the purchaser, describing 120.42 acres, including seven buildings, the parcel and stating the restriction and was determined to be $34,750. Settle• conditions to the transfer. Such restric• ments were obtamed from the owners for tions may deal with the use of the land, pro• this amount. hibiting structures, fences or billboards, or We subsequently sold the buildings and use for commercial purposes. Reserva• the excess lands, consistingof 93.25acres, tions might include the right of the grantor by public auction and grossed $12,750. to control vehicular access to the highway Instead of the right-of-way costing $25,334 or the right to restrict further development as originally appraised, it cost $22,000or of the area. All restrictions or reserva• a saving of $3,334 not considermg the tions are determined such as to protect the auctioneer's fees and advertising, the sum improvement and its environs and "to pre• of which amounted to approximately $334. A serve the view, appearance, light, air and net saving of $3,000 was therefor realized. usefulness of such public works." In another case on the same project, by Although this is a long drawn out process, expending $28,250 for 116 acres, including it provides ample time to consider all a house and barn, we received $20,984 angles of the transaction and avoids the from an auction sale of the buildmgs and simpler real-estate deal which might other• 80.05 acres of excess area, makmg the wise be made on the spur of the moment to cost of our 34.95 acres of right-of-way to a private party in exchange for needed lands be $7,266 or $207 per acre. Although no he owns, or because his offer appeared appraisal was attempted for the right-of- reasonable at the time and which might be way parcel, our records show that adjacent considered as an imwise deal where the parcels were appraised at $300 per acre commission might be subject to criticism. for land only and that by adding cost of We have been financially successful in fencing, severance and proximity damages, most of our public sales, especially those as well as damages due to reduction in size 66 of farm, the appraisal might have reached zoning and setback lines are established a figure of $400 or more per acre. We for agricultural and industrial use by the conclude, therefore, that in this case we counties and shall become effective with• realize a savmg of at least $7,000. In in a town only when the ordinances are fact, the excess parcels were sold as adopted by such town. This figure shows follows: 106 towns comprising 8 percent of the 5.3 acres at $380 per acre total number of towns in the state. The 39. 5 acres at $335 per acre areas cross-hatched show the towns that 35.25 acres at $137 per acre have adopted the complete zoning and set• or 80.05 acres at $250 per acre, or $43 back restrictions, and the blank areas more than the per-acre cost of the portion within the same counties show the towns retained for highway right-of-way. that have not adopted the ordinances to These reported ways of reserving lands date. for street and highway improvements as Figure 3 shows the towns that have used in Wisconsin are not faultless but, adopted zoning and setback lines without nevertheless, have been used successfully. county ordinances. Several of these are Any revision of the present laws would need to be scrutinized carefully before it is recommended for passage. Quite often a legislator or group of enthusiastic promot• ers is able to introduce for passage, ridicu• lous laws that would be difficult to observe or enforce, such as the time a law was proposed in a state that the value of pi should be the simple amount of "3" instead of "3.1416"; or the time that Wisconsin went all out and passed a law m commem• oration of its war heroes by ordermg that there shall be established within 50 yr. a Silent Cross Memorial Highway consisting of a north-and-south highway through the state intersecting with an east-and-west highway to form a cross. The cost of the proposed beautif ication of the crossed high• ways with controlled land use, restriction of style of architecture for the buildings, and other impractical provisions is in many ways not tied to highway needs or existmg Figure 1. patterns of traffic. The language of any statute is the im• located in Rock, Waukesha, and Ozaukee portant factor m the success or failure of Counties, with one in the western part of providing ways to resolve present-day the state in the southwest corner of Trem• highway problems and to avoid possible pealeau County." interpretation by the courts as to be uncon• Figure 4 shows two counties, Brown stitutional, unusable, or contrary to orig• and Dodge, where setback restrictions inal intent. have been established without zoning ordi• COMMENT ON FIGURES nances. There are two more counties that are proposing similar ordinances. Figure 1 shows the state of Wisconsin The reason for this partial restriction of with a cross-hatched area near the top. land use is possibly that the counties This area is almost entirely for the devel• themselves thought they could get legisla• opment of forestry or for recreational tion of that type of ordinance passed and use. The law affecting this area was the with a "foot in the door" they would even• first zoning law legislated in Wisconsin tually be able to pass ordinances for com• dealing in land use for large areas of the plete zoning. state. Figure 5 shows a typical sign placed Figure 2 shows the areas affected by along our controlled-access highways to the type of ordinance in which complete warn subsequent real estate purchasers 67 that permission for entrances must be ob• avoid entrances at every lot from the high• tained from the local division office of the way or that a service road area be provided highway commission. This kind of notice on his own property parallel to the highway. The commission would not accept a plat of this type unless provisions were made for the recommended revisions. In this example, however, the state trunk highway is actually an east and west highway on Mt. Washington Street at the south end of the plat, and because there are three lots in the plat adjoining the highway, a note has been added which reads, "There shall be no vehicular in-

Figure 2. works out fairly well, much better than by newspaper publication alone. Figure 6 shows a typical plat that has been submitted to the highway commission for approval. If the state trunk highway ran north and south instead of east and west, as m this case, the commission would have returned the plat to the owner with a request that the lots adjacent to Figure 4. the state trunk highway be revamped to gress and egress from Lot 1, Block 1, and Lots 1 and 9, Block 3, to Washington Street (S. T. H. 60) as shown on this plat as approved by the State Highway Com• mission on December 29, 1952. " You will notice there is no indication that the plat has been recorded, because the recording follows approval of the various public agencies, and m this case, the plat still requires approval by the Village of Grafton. Figure 7 is an example of an attorney's effort to prepare a restricted development right instrument of conveyance. You will find the types of restrictions listed in the paper of "Development Restrictions. " I can hardly blame an owner for not signing it when there is such a lengthy paper of fine print. It takes about a half hour to read it. I regret we haven't a simple in• strument for the conveyance of restricted Figure 3. development rights, but when the attorney 68 presented his first rough draft it was four joining triangular 20 acres for a total of pages long. A subsequent conference, 100 acres. Parcel 16 was owned by with the help of fine print, reduced it to Remhold Zessin, and his farm consisted one page. of the remaining triangular 20 acres ad• jacent to Parcel 17, and a 40-acre tract, for a total of 60 acres. The outletfrom CONTROLLEO-ACCESS HIGHWAY both farm buildings was by private road between the two triangular 20-acre tracts. By taking a 300-ft. strip of these farms ACCESS RIGHTS RESTRICTED on a diagonal we would, of course, damage INFORMATION AS TO ENTRANCES both farms considerably. In the case of AVAILABLE AT STATE HIGHWAY COMMISSION Parcel 17, the strip included all the build• DIVISION OFFICE STATE OFFICE BLOG MADISON WIS ings, but Parcel 16 was land only. It was necessary in the first place to appraise the value of this strip for each parcel and Figure 5. determine the damages to the remaining Figure 8 is one that shows an example lands. An appraisal for both parcels was of excess right of way. We encountered obtained in the amount of $25,334, which a problem in our negotiations for a right included the cost of 26.16 acres, 415 rods of way on relocation where a 300-ft. strip of new fence, moving seven buildings, would run diagonally through two adjacent replacing a well and two concrete silos, farms and required moving or purchasing and of course, severance damages. the entire set of buildings on one of the The owners of both parcels refused to farms. One farm is numbered Parcel 17 sell the strips for that figure. Refusal to and was owned by Stanley Brzozowsky. deal by contract would normally have re• He owned two 40-acre tracts and an ad• quired condemnation of both parcels and

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Figure 7. 70 possible subsequent court appeals. It was troUed-access regulations, the purchasers realized that the cost might reasonably would have no direct access to the highway, have been determined by a jury to result except that if the westerly tract was land in payment of an amount approximating the locked, we would permit one entrance. value of the entire farm of 100 acres, in We advised that at no time, and under no the case of Parcel 17. The severance conditions, would we permit a crossover damages to ten acres by Parcel 16 to a between the separate tracts on each side 60-acre tract might be determined by a of the highway. jury to be much higher than the original We realized a gross receipt of $12,750. appraisal. So, instead of the right-of-way costing

Figure 8.

Bear in mind that Zessin would have a $25,334, as originally appraised, it cost smaller area to farm and that Brzozowsky $22,000, or a saving of $3,334, would have to move his seven buildings to I have another example of a similar the northeast and work the larger part of sale reported in my paper where a saving the remainingproperty by constantly cross• of at least $7,000 was realizedby purchas• ing a super highway with his equipment. ing a piece of property including H6 acres So, not being assured of what a jury might with a house and barn. award in either case, we decided to appraise the entire farm of 100 acres and that part of CONCLUDING REMARKS the Zessinproperty included in aline south• westerly of the 300-ft. strip. The total Now in conclusion, these ways and means value of the 120. 42 acres, including seven of reserving lands for street and highway buildings, was appraised at $34, 750, improvements as used in Wisconsin are not Settlements were obtained from the then faultless, but nevertheless they have been satisfied owners for this amount. used successfully. Any revision of the We subsequently sold the buildings and present laws of our state needs to be scrut• the excess lands, consisting of 93.25 inized carefully before it is recommended acres, by public auction. The bidders were for passage. Quite often a legislator or warned that due to the highway having con- group of enthusiastic promoters is able to 71 introduce for passage ridiculous laws that they are removed and the site becomes a would be difficult to observe and enforce. part of the highway right of way auto• Wisconsin, mind you, went all out and matically. passed a law in commemoration of its war MR. LEVIN. Are there any other heroes by ordering that there shall be es• questions? Could you give us rough idea tablished within 50 yr. a Silent Cross Mem• of how many plats have been submitted orial Highway, consisting of a north and to your commission for review on your south highway through the state, inter• control of platting authority? Are there a secting with an east and west highway to lot of them, or just a few' form a cross. By the language of the MR. SAWTELLE. I do not have the statutes. It appeared that the highway information as to the number of these should be so designed and the adjacent plats that we have received since the property so zoned as to use that someone statutory authority was effective, but from the heavens, or on his way to Mars they come in quite often. Almost daily. or the moon would look down on Wisconsin MR. LEVIN. In other words, it is not and see a beautiful cross imposed on the just a single section of highway that is landscape. It was idealistic. One can't affected by this approval. blame the legislature for honoring their MR. SAWTELLE. No, it covers the heroes in some manner, but the cost of whole state highway system. such a proposed beautification of the MR. LEVIN. Outside of incorporated crossed highways with controlled land areas where there is no other opportunity use, the restriction of the style of archi• for reviewing plats by a public board, tecture for the buildings, and other im• the commission apparently must approve practical provisions is in many ways not all plats adjoining state trunk highways? tied to highway needs or existing patterns MR. SAWTELLE. Yes, outside of of traffic. Milwaukee County and those areas that The langu^e of any statute is the im• have a county planning board or depart• portant factor in the success or failure of ment of their own, we are at present not providing ways to resolve present day high• too sure about Milwaukee County, since way problems and to avoid possible inter• there is some thought that we have a right pretation by the courts as to be unconsti• to review plats in the City of Milwaukee tutional, unusable, or contrary to original and Milwaukee County, but there is an intent. Thank you. unanswered question of the interpretation of the law. We have so far not reviewed DISCUSSION any Milwaukee County plats. MR. LEVIN. Now, there you have a MR. MOSER. In the case of restricted type of control that doesn't cost the public development rights, do you prohibit the a nickel, there is not a dollar of state high• erection of fencing around the restricted way funds that goes into that except maybe areas? for an administrator of the program. MR. SAWTELLE. In many cases we MR. SAWTELLE. The administration prohibit the erection of fences around such of this activity is handled by our plan areas. We will allow fencing on the owner's engineer, as an added task, since the work side of the area if such area is extending does not require the service of an additional into the normal or adjacent right of way, employee. but where the area is beyond and adjacent MR. LEVIN. Do you get a look at it? to the right-of-way, we allow a fence on Your traffic engineer reviews it? the right-of-way line bordering the area MR. SAWTELLE. No, neither the reserved or acquired for highway use. right-of-way department nor the traffic Any buildings located on the restricted department examines such plats. The development area at the time of right-of plan engineer submits the plat to the high• -way acquisition are restricted to their way commission, with his recommenda• present use and shape. We do the same tions and the commission in its review may thing you do in restricting improvements not accept his recommendation, but on the on such structures. Barns located on the other hand, they might. It is up to the restricted areas serving their purposes commission itself to act on each submittal today are allowed to remain until no longer and approve or disapprove the proposal. needed or used without major repairs, then MR. LEVIN. There is one other ob- 72 servation I would like to make with your MR. LEVIN. Incidentally, when you indulgence, and you are a very patient go back, you already have the rights of audience. Mr. Sawtelle said it costs about development, now when you go back, you $100 or $150 for protection for which you shouldn't pay the full market value. You get nothing. I just wondered if we shouldn't should pay the full market value minus the look at that. I know you didn't mean it rights of development so that theoretically quite like that, and I am not interpreting the total you should pay for the rights, that lightly, I wonder if its the same kind plus the total you pay when you acquire of protection that the insurance people land, should not exceed the market value. provide. You insure your house against I am talking about theory. The theory in loss by fire on the theory that in case other words, whether practically it works something happens the risk of a $10,000, out that way, obviously it didn't in Mr. $15,000, or $20,000 house would be Moser's state, but in principal when you spread over a large number of people. go back to acquire, what you are doing is Now if your house does not burn down the acquiring, whatever you are acquiring $10 or $15 that you pay annually for that minus the right of development, and that fire insurance is wasted perhaps, but as frequently is a valuable right. In fact, you well pointed out, instead of paying the more valuable it is, the more you pay $5,000 or $10,000 a structure, you just for it, the less you should pay for it when pay $100 or $150 as insurance premium. you go back and acquire the right, isn't I think that is a very sound way of looking that so, at least in theory? at it, isn't it, that it's a protection. MR. SAWTELLE. Yes, but you can MR. SAWTELLE. In theory only, but spend too much for such insurance, and an element of benefits derived from the for the type or interest you obtain I am highway improvement at the time of ac• inclined to agree with Mr. Moser that quiring the restricted development rights perhaps if you get to a point of paying enhances the market value of the property almost the value of the land, you might such that a subsequent purchase of fee as well get fee title in the first place, title or an easement requires an additional The same thing is happening to us in our e:q>enditure which might often equal the acquisition of easements. We pay the original cost of the development rights, price of fee title yet have only the right therefore, we practically get nothing for to use the property for highway use and the initial investment or for the insurance the underlying fee holder can continue you mention, and it appears that it might to benefit from the use of the land as be more economical in the long run to long as such use does not interfere buy the easement or fee at the first op• with the rights of the easement. We are portunity, in cases where planning pro• gradually acquiring the fee, but it takes poses eventual acquisition of additional time to put that plan into effect. rights in the not too distant future.

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