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Diamond D Properties v. Dept. of Transportation (2/22/91), 806 P 2d 843
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to permanent
publication.
THE SUPREME COURT OF THE STATE OF ALASKA
8,960 Square Feet, more or )
less; DIMOND D PROPERTIES, a ) Supreme Court No. S-3245
Limited Partnership; DIMOND D )
DEVELOPERS, a Connecticut ) Trial Court No.
Limited Partnership, ) 3AN-84-12476 Civil
)
Appellants, )
)
v. ) O P I N I O N
)
STATE OF ALASKA, DEPARTMENT )
OF TRANSPORTATION AND PUBLIC )
FACILITIES, )
)
Appellee. )
)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Brian C. Shortell, Judge.
Appearances: Julia B. Bockmon, Leroy J.
Barker, Robertson, Monagle & Eastaugh,
Anchorage, for Appellants. Virginia A.
Rusch, Assistant Attorney General, Anchorage,
and Douglas B. Baily, Attorney General,
Juneau, for Appellee.
Before: Matthews, Chief Justice,
Rabinowitz, Burke, Compton and Moore,
Justices.
MATTHEWS, Chief Justice.
This case arises on appeal from the grant of a motion
for summary judgment. The ruling below was based on the premise
that in an eminent domain proceeding to determine just
compensation, "loss of visibility is not compensable as a matter
of law." We reverse and remand for further proceedings
consistent with this opinion.
I.
Dimond D Properties and Dimond D Developers (Dimond D)
own a tract of land in Anchorage, the Dimond D Development
Subdivision. The eastern half of the subdivision (Block 2) is
bounded on the north by Dimond Boulevard, on the west by Dimond D
Circle, and on the east by a right of way belonging to the Alaska
Railroad. A diagram of the relevant area is provided below for
clarity.
-N
ª--------Alaska Railroad
Dimond Boulevard
-
«
Parcel 59
ª-----------Alaska Railroad
BLOCK 1 BLOCK 2
Right of Way
Dimond D----r
Circle
Dimond
Center
Dimond D
Development Subdivision
In 1985, the state began a project to improve Dimond
Boulevard. This project involved widening the road from two
lanes to six lanes and providing an overpass across Dimond
Boulevard for the Alaska Railroad. In the process of widening
the road, the state condemned a portion of Block 2. The part of
the subdivision condemned by the state (Parcel 59) abuts Dimond
Boulevard for roughly 235 feet and extends some 35 feet into
Block 2. For the elevated railroad crossing, gradually rising
earth berms were built to raise the tracks so they could cross a
trestle over the road. The berms were built entirely on the
Alaska Railroad right of way. The southern berm is immediately
to the east of Block 2 and reduces its visibility to motorists on
Dimond Boulevard travelling west. The visibility of Block 2 from
the Dimond Center, a shopping mall on the other side of the
railroad tracks, is also impaired. In addition, the grade of
Dimond Boulevard itself was lowered to pass under the tracks.
Before the project began, Dimond Boulevard was about 1 to 2 feet
above the grade of Block 2. The project lowered Dimond Boulevard
approximately 5.5 feet from this original level at the northwest
corner of Block 2 and some 7 feet below this level at the
northeast corner of Block 2. The parties dispute whether the
lowering of Dimond Boulevard had any effect on the visibility of
Block 2.
At a hearing to determine just compensation for the
taking of Parcel 59, Dimond D presented evidence that Block 2
suffered severance damages of $461,817 due to the loss of
visibility from Dimond Boulevard and the Dimond Center. The
state moved for a summary judgment ruling that Dimond D is not
entitled to compensation for any loss of visibility. The
superior court granted the state's motion, ruling that "loss of
visibility is not compensable as a matter of law." We now
consider Dimond D's appeal from that ruling.
II.
We are called upon to determine whether, as a matter of
law, loss of visibility is ever compensable in an eminent domain
proceeding. This is an issue of first impression in Alaska. As
we face a question of law, we are not bound to defer to the lower
court's decision; rather our duty is to adopt the rule of law
which is most persuasive in light of precedent, reason, and
policy. Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979);
Osness v. Dimond Estates, Inc., 615 P.2d 605, 610 (Alaska 1980).
Article I, section 18 of the Alaska Constitution
provides that "[p]rivate property shall not be taken or damaged
for public use without just compensation." We have held that
this section is to be liberally construed in favor of the
property owner. See, e.g., Homeward Bound, Inc. v. Anchorage
School District, 791 P.2d 610, 614 (Alaska 1990); DeLisio v.
Alaska Superior Court, 740 P.2d 437, 439-40 (Alaska 1987). Thus,
owners are entitled not only to the value of the land taken, but
also to consequential damages to any property severed from the
taken parcel. Babinec v. State, 512 P.2d 563, 567 (Alaska 1973);
State v. Hammer, 550 P.2d 820 (Alaska 1976).
A. Is Loss of Visibility Due to the Earth
Berms Compensable?
As a general matter, a landowner cannot recover from a
neighboring landowner simply because he dislikes the use to which
the second landowner put his property. Thus, a landowner could
not recover from his neighbor just because the other had erected
a building on his own property which blocked the view from the
first owner's land,1 or the visibility of the first owner's land.2
The only way to prevent a neighbor from constructing a building
which would block one's view is to buy an easement of view.
Collinson, 778 P.2d at 536-37. The logical implication of this
position is that a property owner has no right to an unobstructed
line of vision to his property from anywhere off of his property,
absent an easement of some sort.
The record indicates, and Dimond D does not dispute,
that the earth berms obstructing Block 2's visibility were built
entirely on the railroad right of way. Although the tracks were
raised as the result of a state project, this is irrelevant. The
fact is that the railroad could have raised its tracks (or
otherwise obstructed Block 2's visibility) for any legitimate
reason,3 and Dimond D would have no legal basis to complain.4
Dimond D's mere ownership of Block 2 gives it no property
interest in the railroad right of way, and therefore it has no
legal basis for complaining about loss of visibility due to the
earth berms.
B. Is Loss of Visibility Due to Changes on
Parcel 59 Compensable?5
Unlike the building of the earth berms, the widening
and lowering of Dimond Boulevard was accomplished through the
taking of part of Dimond D's property, Parcel 59. This
distinction is significant. Ownership of land gives the owner
the right and ability to limit any obstructions from being placed
on that land. In particular, ownership of land abutting on a
road gives the owner the right to control the visibility of all
adjoining land further off the road. This obviously can be an
important commercial asset. Thus when the state takes a parcel
which abuts the road, it also takes the potentially valuable
right to control the visibility of the remaining parcel. For
this reason, we believe that the best rule in light of reason and
policy is that loss of visibility to a remaining parcel is
compensable where that loss is due to changes made on the parcel
taken by the state.6
Cases from other jurisdictions lend general support for
this position. The California case of People v. Ricciardi, 144
P.2d 799 (Cal. 1943), also involved the partial taking of
commercial land for the purpose of separating the grade of a
street and a railroad. The effect was to block completely the
visibility of the landowner's remaining parcel from the traffic
travelling through the underpass. The California Supreme Court
recognized an easement of reasonable view of the remaining parcel
from the highway. Id. at 806.7 Courts in other jurisdictions
have reached similar conclusions. See Murphy, Inc. v. Town of
Westport, 40 A.2d 177, 183 (Conn. 1944); Kelbro, Inc. v. Myrick,
30 A.2d 527, 530 (Vt. 1943); North Carolina State Highway Comm'n
v. English, 200 S.E.2d 429, 432-33 (N.C. App. 1973); Bramson v.
Berea, 293 N.E.2d 577, 583 (Ohio C.P. 1971); see also 39 Am. Jur.
2d, Highways, Streets, and Bridges 173 at 548-49 (1968).
In addition to those courts which recognize a right of
visibility, many courts recognize a right of view from a
remaining parcel. At least some of these courts rely on the same
reasoning we use here, i.e., a landowner is entitled to
compensation for the reduced value of the remaining parcel caused
by an obstruction placed on the taken parcel. See, e.g., La
Plata Elec. Ass'n v. Cummings, 728 P.2d 696 (Colo. 1986)
(landowner who had portion of property condemned for purpose of
constructing an electric power line was entitled to compensation
for reduction in the value of the remainder of property resulting
from aesthetic damage and loss of view); Pierpont Inn, Inc. v.
State, 449 P.2d 737, 745-46 (Cal. 1969) (trial court did not err
in permitting jury to consider the loss of view and relatively
unrestricted access to the beach resulting from state's taking of
part of larger parcel for freeway); Dennison v. State, 239 N.E.2d
708, 709-10 (N.Y. 1968); Miller Levee Dist. No. 2 v. Wright, 111
S.W.2d 469, 472 (Ark. 1937). See generally Annotation, Eminent
Domain: Compensability of Loss of View From Owner's Property --
State Cases, 25 A.L.R.4th 671, 3-4, at 675-82 (1983).
The cases cited by the state against compensation for
loss of visibility under any circumstances fail to persuade us.
Several courts have denied compensation on the ground that since
landowners have no right to traffic flow,8 they cannot have the
right to be seen by traffic. See State ex. rel. Missouri Highway
& Transportation Comm'n v. Dooley, 738 S.W.2d 457, 469 (Mo. App.
1987); Troiano v. Colorado Department of Highways, 463 P.2d 448,
455 (Colo. 1969); Acme Theatres, Inc. v. State, 258 N.E.2d 912,
914 (N.Y. 1970). These cases overlook the fact that as long as
there is a road adjacent to the taken property, part of the value
of that property consists of the right to control the visibility
of land further away from the road.9 The state also cites
Probasco v. City of Reno, 459 P.2d 772, 774 (Nev. 1969) where the
court held that an abutting property owner does not have an
implied negative easement of light, air, and view across a public
street. Probasco, however, involved no physical taking of the
abutting owner's property. This, as discussed above, is crucial
to any compensation for loss of visibility under our holding
today. Filler v. City of Minot, 281 N.W.2d 237 (N.D. 1979)
squarely rejects a claim for loss of visibility, yet no
substantive reasoning is provided for this position. Finally,
the brief language in State v. Lock, 468 S.W.2d 560, 566 (Tex.
App. 1971) is apparently dicta.
On the question of law before us today, we believe that
for the foregoing reasons, the best position is that loss of
visibility is compensable in an eminent domain proceeding where
the diminished visibility results from changes on the property
taken from the landowner, but not where it occurs due to changes
on the property of another. Thus we REVERSE the grant of summary
judgment and REMAND for further proceedings consistent with this
opinion.10
_______________________________
1 See La Plata Elec. Ass'n v. Cummings, 728 P.2d 696, 701
(Colo. 1985) ("[A] landowner whose property is reduced in value
by the acquisition and use of adjoining land by a private party
ordinarily cannot recoup this loss from the adjacent land
user."); Collinson v. John L. Scott, Inc., 778 P.2d 534, 537
(Wash. App. 1989) ("The general rule appears to be that a
building or structure cannot be complained of as a nuisance
merely because it obstructs the view of neighboring
property.")(citing cases); 2A J. Sackman & P. Rohan, Nichols' The
Law of Eminent Domain, 6.32 at 6-226 (rev. 3d ed. 1989)
(erecting a structure which cuts off the view of a neighbor
"frequently is inflicted by private owners without liability").
2 See Mohr v. Midas Realty Corp., 431 N.W.2d 380 (Iowa 1988)
(neighbor's building blocked approaching motorists' view of
business).
3 Although this is not an occasion to decide the issue, we
note that there is authority for the proposition that a property
owner has no right to erect and maintain a structure which
substantially blocks the passage of light and air to a neighbor's
property for the sole purpose of causing injury to the neighbor.
See Sundower, Inc. v. King, 509 P.2d 785, 787 (Idaho 1973).
4 Dimond D does not argue, and we find no evidence, that
Dimond D had any easement of view across the railroad right of
way.
5 The parties dispute whether there was loss of visibility
due to the taking of Parcel 59. However, we will assume there
was such loss for the purposes of this analysis since summary
judgment was granted on the basis that "loss of visibility is not
compensable as a matter or law."
6 A problem arises where the state takes a parcel yet does
not immediately cause any loss of visibility to the remaining
parcel through changes on the taken parcel. The concern is that
the state may create some sort of obstruction on the taken parcel
and thus cause a loss of visibility at some time in the future,
long after the eminent domain proceedings are over. To protect
the owner of the remaining parcel from such an occurrence, we
believe that where the state simply takes land but creates no
obstruction, an easement of visibility across the taken parcel is
reserved to the owner of the remaining parcel. If and when the
state causes a loss of visibility to the remaining parcel through
a change on the taken parcel, then this constitutes a separate
taking, this time of the easement of visibility. When this
happens, the owner can bring an inverse condemnation proceeding
to recover for the loss of visibility. Cf. State v. Lewis, 785
P.2d 24, 28 (Alaska 1990) ("When an owner settles or receives a
condemnation award in reliance on a construction plan which is
implemented and later altered, the owner is entitled to just
compensation for any resultant economic damage to the property,
provided that a portion of the property was taken for the
original construction project, and the remaining property
decreased in value as a result of the alteration."); see also
Grant v. State, 560 P.2d 36, 39 (Alaska 1977).
Even when the state creates no obstruction on a parcel which
it takes, it may, if it wishes, acquire a fee simple in such
land, unburdened by an easement of visibility. However, to do
so, the state must compensate the owner for the loss of the right
to control the visibility of the remaining parcel. Since this
might prove to be economically burdensome where the state has no
intention of blocking the visibility of the remaining parcel, we
believe that reserving an easement of visibility to the owner of
the remaining parcel is preferable to, for example, requiring
condemnation of visibility rights in all cases. The easement
approach leaves the option of whether to acquire -- and pay for -
- the visibility rights of a remaining parcel with those in the
best position to make that decision.
7 The California intermediate courts have split on the issue
of whether or not a landowner is entitled to loss of visibility
where the loss was not caused by construction on any part of his
land. Compare People v. Wasserman, 50 Cal. Rptr. 95, 105 (Cal.
App. 1966) (denying compensation where the improvement causing
the loss of visibility was not located on the property of the
defendant) with United California Bank v. State, 81 Cal. Rptr.
405, 411 (Cal. App. 1969) (approving compensation for loss of
exposure of commercial land due to construction of underpass on
land not owned by commercial landowner). Our decision today is
closer to the Wasserman decision.
8 We have previously indicated that there is no right to
traffic flow. B & G Meats, Inc. v. State, 601 P.2d 252, 254-55
(Alaska 1979). The reason why the state can restrict traffic
flow (e.g., by diverting the road away from one's property) is
that the state is not using the landowner's property to
accomplish its purpose. As we stated in B & G Meats, traffic
flow "is not a part of the owner's interest in his property."
Id. at 254. This is in contrast to the right of reasonable
highway access which "[c]ourts have universally recognized [as]
one of the incidents of ownership of property abutting a public
highway." Id.
9 We also note that the facts of Dooley leave unclear
whether the loss of visibility to the remaining parcel was caused
by any change on the taken parcel. Further, in Troiano, it was
"undisputed that there [had] been no taking of Mrs. Troiano's
property." 463 P.2d at 449.
10 With regard to loss of visibility, the relevant issue on
remand will be whether the state made any changes on Parcel 59 so
as to cause a loss of visibility of Block 2 from Dimond
Boulevard. We note that the briefs of the parties reveal that
this issue is not settled.
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