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.