State Roads Commission v. Jones

McWilliams, J., delivered the opinion of the Court. On 25 February 1953 Dr. and Mrs. H. Alvan Jones (appellees) acquired a tract of land in Howard County containing 26.3 acres, 25 of which lie in the northeast quadrant of the intersection 1 formed by U. S. Route 29 (Columbia Pike) which runs north and south and Md'. Route 144 (Old Frederick Road) which runs east and west. The frontage on the north side of Route 144 is about 900 feet and on the east side of Route 29 about 600 feet.

The balance (1.3 acres), triangular in shape, lies in the northwest quadrant, fronting about 500 feet on the west side of Route 29. The larger tract enjoys access to both Route 29 and Route 144 by private driveways, both of which had been in use before the appellees bought the property. Some time prior to December 1963 the State Roads Commission (Commission), by formal resolution designated Route 29, from U. S. Route 40 to the Montgomery County line (about 14 miles), a controlled access arterial highway. On 27 December 1963 the Commission filed the usual condemnation petition against appellees for the purpose of acquiring the 1.3 acre parcel ²⁴⁸ on the west side of Route 29 and “all the right whatsoever of ingress and egress between the through highway [Route 29] and the remaining property of the * * * [appellees] * * * to the end that there will never be any vehicular, pedestrian and/or animal access to or from the through highway” and appellees’ remaining property.

Simultaneously with the filing of the petition the Commission, complying with the provision of Code Art. 89 B, § 9 and Maryland Rule U, deposited with the clerk the sum of $4001. Responding to interrogatories several months later, the Commission declared that $4000 was for the 1.3 acre parcel and $1.00 was for the closing of the driveway and the denial of all access along Route 29. While negotiations between the parties failed to produce an agreement in respect of the value of the 1.3 acre parcel, the Commission refused, to discuss the question of compensation for the closing of the driveway and the denial of access, taking the position that there was no damage and, in any event, the damage to the appellees, if any, was not compensable. Appellees responded by moving the court to enter a summary judgment in their favor “as to that part of the plaintiff’s suit relating to condemnation of their right of access to the east side of Route 29, so that the case * * * [might] proceed to trial only as to defendants’ property on the west side of Route 29.” On 12 January 1965 Judge Evans granted the motion for summary judgment, from which judgment the Commission has appealed.

The Commission contended, both in its brief and in its oral argument, that the closing of the driveway and the denial of access constitute a proper exercise of the police power and “therefore * * * [are] not * * * compensable item[s] of damage.” It was unable, however, to reconcile this contention with the fact that the suit was brought pursuant to its powers of eminent domain and that it actually had paid damages into court. The amount, it is true, was nominal but it was the sum of money deemed by the Commission “to be the fair value of the land and improvements taken and damages done to the aforesaid property.” Several members of the Court commented, during argument, on the inconsistency of the Commission’s position and in the ensuing colloquy there were indications that ²⁴⁹ the propriety of the use of the police power in this and similar situations could not be resolved in this litigation. Recognizing the probability of an adverse holding, counsel for the Commission agreed' to a suggestion by the Court that the case be re-argued on the basis of an appropriate stipulation. The stipulation, to which counsel for appellees also agreed, is as follows: “1.

That the petition for condemnation for the denial of access and the $1.00 deposited therefor, shall be considered withdrawn from this case, prior to the hearing by the court below. “2. That this Honorable Court decide the issue of this case as if the same were filed as a Petition for a Declaratory Judgement, i. e. whether access under the facts of this case, can be denied under the Police Power, or must be acquired by condemnation under the principles of eminent domain.” The Commission says that to make conventional highways safer for the transportation of the public it is necessary to use the police power to limit or deny access to the abutting landowner and that this is a proper exercise of the police power. It goes a long step further and contends that it is “obvious” that such a use of the police power “is an inherent segment of the highway laws.” The Commission concedes that heretofore it has accomplished denial of access along existing highways only by paying compensation to the abutting landowner, the amount thereof having been resolved either by agreement or by condemnation. It further concedes that this case reflects a proposed change in policy, which, if successful, will result in substantial economies in the area of right of way acquisition.

It should be observed, as a prelude to the determination of the validity of the Commission’s claim, that the police power inheres exclusively in the Legislature, and can be exercised by its creatures, such as the Commission, only to the extent it has been delegated. Md. Coal Etc. Co. v. Bureau of Mines, 193 Md. 627, 640 , 69 A. 2d 471 (1949); 16 C.J.S., Constitutional Law, §§ 177-78 (1956); Oppenheimer, Administrative Law in Maryland, 2 Md. L. Rev. 185, 189 (1938). We shall concern ourselves, therefore, with the single question whether there has been ²⁵⁰ such a delegation.

Any one undertaking this task would do well, by way of proper orientation, to keep in mind an observation made by Mr. Justice Holmes, in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415-16 (1922): “The protection of private property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation. A similar assumption is made in the decisions upon the Fourteenth Amendment. Hairston v. Danville & Western Ry. Co., 208 U. S. 598, 605 .

When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last private property disappears.” * * * “We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” There is, of course, a veritable gallimaufry of judicial opinion in respect of the right of access of abutting owners to highways. As long ago as 1907 the Supreme Court felt compelled to say: “The right of an owner of land abutting on public highways has been a fruitful source of litigation in the courts of all the States, and the decisions have been conflicting, and often in the same State irreconcilable in principle. The courts have modified or overruled their own decisions, and each State has in the end fixed and limited, by legislation or judicial decision, the rights of abutting owners in accordance with its own view of the law and public policy.” Sauer v. New York, 206 U. S. 536, 548 , 51 E. Ed. 1176, 1182, 27 Sup. Ct. 686, 689 (1907).

We content ourselves by observing that the situation has not improved and we draw not a little comfort from the fact that ²⁵¹ it will not be necessary, in this case, to undertake either a discussion or a reconciliation of these seemingly myriad decisions, to say nothing of the output of the text writers and the legal periodicals. In the April 1940 issue of the Maryland Daw Review there appeared a scholarly and exhaustive article by Robert R. Bowie, entitled Limiting Highway Access, 4 Md. L. Rev. 219 . Professor Bowie reviewed all of the extant decisions of this Court, and as well the decisions of many other courts, devoting special attention to Baltimore v. Dobler, 140 Md. 634 , 118 Atl. 168 (1922), (on a later appeal) 151 Md. 154 , 134 Atl. 201 (1926), and Krebs v. State Roads Comm., 160 Md. 584 , 154 Atl. 131 (1931), on both of which the Commission places great reliance here. One of the conclusions reached by Professor Bowie was that “so long as some reasonable means of access is preserved, the public may restrict or destroy the access of an abutting owner to a particular road by any measures designed to maintain, improve or preserve the highway or to protect its users, without paying him compensation or damages.” 4 Md. L. Rev. 219 , 243.

(Emphasis supplied.) Professor Bowie went on to say: “In conclusion it may be well to emphasize that this article has dealt only with the constitutional power of the state to limit the abutting owner’s access in the public interest without compensation for resulting damage. How far and in what cases that power should be exercised is of course a matter of legislative policy beyond the scope of this article.” Id at 246 (Second emphasis supplied.) Whether it was merely post hoc or genuinely propter hoc we are unable to say; however, it is a fact that within less than a year after the publication of Professor Bowie’s article the Regislature enacted Chapter 487 of the Acts of 1941, the provisions of which we have scrutinized and which we think are dispositive of the question now before us. Chapter 487, supra, added to Article 89 B of the Code sections 214 to 219 (both inclusive) under the heading “Freeways.” Sections 214 and 215 are as follows: ²⁵² “§ 214. Establishment and construction. “(a) Authority.—The Commission may lay out, establish and construct any State highway as a freeway.

A resolution adopted by the Commission stating that a proposed highway is to be constructed as a freeway shall be conclusive evidence that the highway, when constructed, is a freeway with all the characteristics and incidents prescribed by this subtitle. “(b) No right of abutting owner to ingress and egress.—When a highway is constructed as a freeway, no owner of land abutting the highway or other person shall have any right of ingress or egress, to, from or across such abutting land to or from the freeway. The Commission in its discretion, at the time of the construction of the freeway or thereafter, may designate points at which access will be permitted, upon such terms and conditions as it may specify from time to time. (An. Code, 1951, § 165; 1941, ch. 487, § 150.) “§ 215.

Designation of existing highways. “(a) Designation by resolution.—The Commission may by resolution designate as a freeway all or any portion of any State highway theretofore laid out, adopted, established' and constructed. “(b) Ingress and egress.—When any existing State highway is designated as a freeway, then “(1) The Commission may by agreement or condemnation, restrict or limit the right of any owner of land abutting the freeway to lay out or construct any new means of ingress or egress to, from or across such abutting land to or from the freeway, or to enlarge or extend any existing means of ingress or egress, and the Commission may, from time to time, designate points at which access will be permitted, or permit changes in existing means of access, upon such terms and conditions as it may specify; and “(2) The Commission may close any existing means of ingress or egress to, from or across abutting land to or from the freeway by agreement or condemnation. ²⁵³ (An. Code, 1951, § 166; 1941, ch. 487, § 151.)” (Emphasis supplied.) As has been said, the Commission has designated this part of Route 29 as a “controlled access arterial highway” which is defined in Code Art. 89 B, § 29, the text of which, in part, is: “§ 29. Definitions. “As used in this subtitle the following words and terms shall have the following meanings, unless the context shall indicate another or different meaning or intent. “(a) Arterial highway.—The term ‘arterial highway’ shall mean a thoroughfare of one or more traffic lanes in each direction with or without physical separation of opposing traffic lanes, and which by the application of proper design standards such as adequate lane widths, adequate shoulders, proper sight distances and other such features of design can safely and expeditiously serve traffic volumes up to 3,000 vehicles per day, and shall embrace all bridges, tunnels, overpasses, underpasses, interchanges, entrance plazas, approaches and other structures which the Commission may deem necessary to the operation of the arterial highway, together with all property, rights, easements, franchises and interests acquired by the Commission for the construction and operation thereof. “(b) Controlled access arterial highways.—The term ‘controlled access arterial highway’ shall mean a major thoroughfare of two or more traffic lanes in each direction having the same characteristics as an expressway except that the conflict of cross streams of traffic need not be eliminated at every intersection by means of grade separation structures. “(c) Expressway. ■—■ The term ‘expressway’ shall mean a major thoroughfare of two or more traffic lanes in each direction, designed to eliminate principal traffic hazards, and shall embrace all bridges, tunnels, overpasses, underpasses, interchanges, entrance plazas, approaches, and other structures which the Commis ²⁵⁴ sion may deem necessary to the operation of the expressway, together with all property, rights, easements, franchises and interests acquired by the Commission for the construction and operation