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36

Legal Aspects of Limiting 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 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 entering and leaving the tinued increase m the number of motor traffic stream, cross traffic, parking, vehicles using our highways* with this in• and 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. , 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 intersections at grade can restriction of private driveways and other triple highway capacity® and reduce fuel vehicular entrances to the public 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 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• -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 , 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. 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 , , Ohio, Oklahoma, Oregon, private property is taken or appropriated Pennsylvania, Rhode Island, , 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 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. . 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 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 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 , 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.