Opinion
No. 4721.
Argued April 8, 1959.
Decided May 21, 1959.
1. The approach road to the Maine-New Hampshire Interstate Bridge at Portsmouth is a public highway and owners of land abutting the approach road have incidental rights of access thereto which, though subject to regulation under the police power, may not be taken for public purposes without compensation.
2. Where the rights of access to such approach road were never released or relinquished by the abutting owners and the evidence failed to establish that rights of access were taken under eminent domain proceedings by the Bridge Authority, the plaintiffs as subsequent purchasers of the property hold rights of access subject to the power of the Authority in the reasonable exercise of its statutory authority to regulate, restrict or deny the access to the approach road sought by such plaintiffs.
3. In such case the abutting owners were held entitled to a judgment declaring their rights.
4. The question of whether access to the approach to the Interstate Bridge as proposed by abutting owners is reasonable or not is one of fact to be determined in the first instance by the Interstate Bridge Authority in accordance with its rules and regulations adopted pursuant to RSA 258:6(3).
5. In determining the reasonableness of a proposal for access to such approach unusual dangers to the traveling public must be weighed against inconvenience and disadvantage to the owner which would arise from its denial, and the proposed access is not to be held unreasonable solely because additional hazard would be involved.
6. The fact that such approach road is the site of established filling stations and intersecting ways is to be considered in determining the reasonableness of a request for access by an abutting owner.
PETITION, for declaratory judgment brought by the owners of land abutting upon the southerly side of the westerly approach to the Maine-New Hampshire Interstate Bridge at Portsmouth, seeking a judgment declaring that the approach is a public highway, and that the plaintiffs have a right of access thereto from their adjoining land. The defendant Authority by its answer alleged that it has the "absolute right" to so control access to the approaches as to make them reasonably safe, "even to the extent of denying all access." Trial by the Court (Morris, J.). The Court found that "the westerly approach to said toll bridge adjacent to the petitioners' property is a public highway," and that "the proposed entrance and exit to the petitioners' property would present a dangerous additional hazard to the traveling public using the east bound lanes of the westerly approach to said bridge"; and dismissed the petition.
The plaintiffs moved to vacate the order upon the ground that the finding, that the proposed entrance and exit "would present a dangerous additional hazard to the traveling public" is "sufficient to deny the petitioners all access to said highway," is against the law, the evidence, the law and the evidence, and the weight of the evidence; and that the order "constitutes the taking of a property right . . . without proper compensation . . . ." To the denial of this motion they duly excepted. All questions of law raised by the plaintiffs' exceptions were reserved and transferred by the Presiding Justice.
The westerly approach to the Interstate Bridge which is owned by and under the jurisdiction of the defendant Authority extends from Route 1 in Portsmouth to the bridge, via the southeasterly side of a traffic circle which also affords access to the bridge from the Seabrook toll road to the west, and Routes 4 and 16 and the Spaulding Turnpike from the north.
The plaintiffs' land is situated east of the traffic circle but west of the bridge toll gate. It abuts the southerly side of the approach, which consists of two east-bound lanes separated by a grass strip from two west-bound lanes. As the plaintiffs' land is approached by motorists traveling east, it is beyond the abutments of the Stark Street overpass which affords access to the Franklin School. The southerly abutment borders closely upon the edge of the traveled way of the approach, and tends to obstruct the view of the plaintiffs' land, which has a frontage of 146 feet on the highway, commencing about 200 feet east of the abutment.
Title to the land occupied by the highway adjoining the plaintiffs' premises was acquired by the Authority in condemnation proceedings instituted in 1938. The land including the premises now owned by the plaintiffs was then owned by the city of Portsmouth. A total of $6,000 was paid by the Authority for a 100-foot strip and for other rights.
The plaintiffs acquired their title by quitclaim deed of the city dated December 16, 1954. The deed described the property as bounded "northerly by the Maine-New Hampshire Bridge Authorities, 146 feet, more or less" and made no reference to rights of access. At the time the plaintiffs took title, the northerly side of the tract was fenced off from the approach road by a seven-foot chain link fence. This fence was erected pursuant to a proviso imposed by resolution of the council of the city of Portsmouth which consented to the taking of land of the city, provided a suitable overpass should be constructed from Dennett Street to the Franklin School "and that the said approach road be adequately fenced on each side where it abuts on said School lot."
On December 14, 1956, the plaintiffs applied to the Authority for permission to have access to and from the bridge approach in order to operate a restaurant on the premises. The access sought was designated by a sketch accompanying the application, which showed a proposed combination entrance and exit 50 feet in width commencing 40 feet from the westerly side line of the lot. By letter dated February 18, 1957, the application for access "at this location" was denied by the Authority upon the ground that "it would create a traffic hazard to the traveling public lawfully using the . . . Approach."
At the trial before the Superior Court the plaintiffs offered evidence that hazards presented by a combination entrance and exit such as was proposed before the Authority could be minimized by the construction of a 50-foot entrance, the westerly edge of which would be 225 feet from the overpass abutment, and a separate 25-foot exit situated easterly of the entrance and 46 feet beyond it. According to the evidence a "speed change lane" leading to such an entrance could commence at the overpass abutment leaving the righthand eastbound lane, and proceeding diagonally within the right of way over a distance of 225 to 250 feet. There was evidence that this distance would be sufficient to permit a vehicle traveling at the applicable speed limit of 40 miles an hour to decelerate to a speed of 20 miles an hour before turning onto the plaintiffs' land. The plaintiffs' expert testified that such an arrangement would not be a "material increased hazard . . . considering the whole area," and considering that "any driveway does present some sort of hazard." An expert witness called by the defendant testified that it would be "an unsafe condition to construct an approach on that lot. There is not enough room between the [abutment] and the lot to build a safe entrance."
Other facts are stated in the opinion.
Boynton, Waldron Dill (Mr. Boynton orally), for the plaintiffs.
Varney Levy and Lawrence W. Guptill, Jr. (Mr. Guptill orally), for the defendant Authority.
The plaintiffs' major exception presents the question of whether the finding of the Trial Court that the proposed access "would present a dangerous additional hazard to the travelling public" warrants denial of "all access" between the bridge approach and the plaintiffs' land. The defendant by its answer takes the position that the rights of abutters along the approach are not controlled by the general law pertaining to the rights of abutters on other public highways in the state; and that the city of Portsmouth relinquished any rights of access appurtenant to the land, so that the plaintiffs acquired none by virtue of the city's quitclaim deed.
The New Hampshire approach to the bridge was held to be a public highway in Interstate Bridge Authority v. Ham Estate, 92 N.H. 277, 279. The court below expressly found that the approach adjacent to the plaintiffs' property is a public highway. Its status as such appears not to be questioned by the Authority, whose published booklet of rules and regulations notes that "the Bridge and approaches are public highways . . . ."
It is established law that an abutter upon a public highway has incidental rights of access to and from the highway. Tilton v. Sharpe, 84 N.H. 43, 44. While these rights are subject to regulation under the police power, they may not be taken for public purposes without compensation. Id., 46; see Anzalone v. Metropolitan District Commission, 257 Mass. 32; Iowa State Highway Commission v. Smith, 248 Iowa 869, 874.
In Interstate Bridge Authority v. Ham Estate, supra, 281, this court said: "The New Hampshire approach is also a public highway . . . Abutting owners have full right to access thereto except within the toll gate limits, where they are subject to 'rules and regulations' [made by the Authority] . . . If any regulation is attempted concerning entrance upon, or use of, portions of the approach west of the New Hampshire gate, it must be a reasonable one, as the court below charged."
It is plain therefore that the plaintiffs are entitled to reasonable access to the approach unless these rights were transferred to or condemned by the Authority when the premises were owned by the city of Portsmouth. No evidence was offered of any conveyance from the city to the Authority. Cf. Wiseman v. Merrill, 99 N.H. 256, 260, 261. Certain resolutions adopted by the city council and by the Authority in 1939 and 1940, received in evidence over objection and exception by the plaintiffs, indicated that the city consented to the taking of its land and to the crossing of its highways and to the raising or lowering of grades at such crossings, and that it released all claims for damages for land taken and "rights . . . granted." But the evidence falls short of establishing any release or transfer of rights of access from lands retained by the city.
The condemnation petition brought by the Authority sought to acquire title to the locus of the approach; but the record before us contains no evidence of any intent to take by eminent domain in those proceedings any rights of access to and from adjoining property.
The fence between the plaintiffs' land and the approach was established for the protection of the city's school lot at the city's request. On the evidence before us it cannot be considered to have conclusively established the city's relinquishment of rights of access from the land now owned by the plaintiffs.
We conclude therefore that the plaintiffs acquired the right of access previously owned by their grantor, the city, and that they now have such a right, subject to the power of the Authority to regulate the same to the extent permitted by law. The Authority is not exempt from a duty to have a "proper regard for an abutter's rights." Langdon v. Interstate Bridge, 92 N.H. 432, 434.
At the trial the plaintiffs placed no reliance upon the proposed combination entrance and exit mode of access which had been denied by the Authority, but relied upon the proposition that the Authority had denied them all rights of access. The proposed access which the Trial Court found to be a "dangerous additional hazard" has never been considered by the Authority, and in its brief in this court apart from claiming a relinquishment of rights of access by the city, the Authority has asserted merely that its denial, on the plaintiffs' application, of "the specific access they requested" was proper, in the public interest, and not unreasonable or arbitrary.
The proposal for access which was advanced by the plaintiffs at the trial is not to be held unreasonable solely because "additional hazard" would be involved. As pointed out in Tilton v. Sharpe, 84 N.H. 43, 47, "the issue is not to be decided by consideration of the demands of the travelling public alone . . . The greater the amount of business transacted in a given locality the the greater are the dangers which the public must necessarily encounter and the greater are the landowner's needs." And in the same case, reported in 85 N.H. 138, 140, it was said: "Between . . . extremes a great variety of situations may arise in which the relative rights of the owner and the travelling public can be determined by no set rules or formulas, but in which the reasonableness of the proposed use must be determined by weighing its unusual dangers to the public against the inconvenience and disadvantage to the owner arising from its denial." See Opinion of the Justices, 99 N.H. 505, 507. Evidence which the plaintiffs sought to introduce at the trial, with respect to traffic conditions and existing hazards between the traffic circle and the toll gate was excluded subject to exception. This was error, which resulted in dismissal of the plaintiffs' petition without consideration of the issue of the over-all reasonableness of the proposed access in the light of "all aspects of the situation." Tilton v. Sharpe, 84 N.H. 43, 47.
The question of fact presented by the proposal placed before the Trial Court is one to be determined in the first instance by the Authority. RSA 258:6(3) vested in it the power to adopt "rules and regulations governing use of the bridge and any other services made available in connection with said bridge." Pursuant to this grant, the Authority adopted its "Rule 2" which provides as follows: "There shall be no entering upon or leaving the Bridge approaches in either Maine or New Hampshire to any adjoining properties except at such places as the Authority may by license grant permission, which license may at any time be revoked by the Authority when in its opinion said entrance becomes either a threat to public safety or to the proper and convenient collection of revenues by the Authority."
The plaintiffs have not questioned the validity of this rule. Its application and enforcement however must be consistent with the standard of reasonable use. The approach, unlike more recently constructed toll roads in the vicinity, is not a limited access highway. Cf. RSA chs. 236, 256. See Wiseman v. State, 98 N.H. 393, 398. On the contrary it is the site of established filling stations (see Gelinas v. Portsmouth, 97 N.H. 248), and intersecting ways which afford egress from the approach before the toll gates are reached. The nature of these permitted uses of the approach must be taken into account in determining the reasonableness of any request for access. Tilton v. Sharpe, 84 N.H. 43, 47, supra.
The plaintiffs sought by their petition for declaratory judgment an adjudication of the existence of their right to access, an adjudication which was denied to them by dismissal of their petition. This was error. They are entitled to a judgment declaring that as owners of adjoining land they have a right of access to the bridge approach, subject to the power of the Authority in the reasonable exercise of its statutory authority to regulate, restrict, or deny the access sought by them.
The plaintiffs will thereafter be free, if they choose to do so, to apply to the Authority for approval of access in accordance with the proposal laid before the Trial Court. As before stated, it will in such a case be for the Authority to determine whether the proposed access would constitute a reasonable use, or would present unusual hazards to the traveling public outweighing the inconvenience and disadvantage to the plaintiffs from its denial.
Exceptions sustained; remanded.
All concurred.