Opinion
No. 36747
Decided January 3, 1962.
Highways — Limited access highway — Service highway an integral part thereof — Director of Highways — Authority to appropriate property for service highway.
APPEAL from the Court of Appeals for Logan County.
The Director of Highways relocated U.S. Route 33 through a portion of Logan County and made it a limited access highway. As a result, a tract of land abutting the highway became landlocked. In order to provide ingress and egress to and from this tract of land, the director instituted appropriation proceedings to acquire a perpetual easement for a service highway over the southwest corner of a tract of land, owned by plaintiffs, adjacent to U.S. Route 33 and extending from the landlock tract to county road No. 95 at the point of intersection of the county road with route 33.
The instant action was brought by plaintiffs to enjoin the director from appropriating a perpetual easement over their premises, contending that the proposed appropriation is unconstitutional as it constitutes a taking of private property for private use only, and that the term, "service highways," as used in Section 5511.02, Revised Code, giving the director authority to construct service highways "to provide access from areas adjacent to a limited access highway," does not contemplate the taking of property of one person for the private use of another whose lands are being appropriated.
The Court of Common Pleas found in favor of defendants and dismissed the petition.
The Court of Appeals, on appeal on questions of law and fact, also found for defendants and dismissed the petition.
An appeal as of right and the allowance of a motion to certify the record bring the cause to this court for review.
Messrs. Smith, Shellhaas Kerns, for appellants.
Mr. Mark McElroy, attorney general, and Mr. Harry R. Paulino, for appellee.
Paragraph three of Section 5511.02, Revised Code, provides in part that "as an adjunct of any `limited access highway' * * * the director * * * may lay out and construct highways and drives, to be designated as service highways, to provide access from areas adjacent to a limited access highway * * *."
Paragraph four of that section defines a limited access highway as "a highway especially designed for through traffic and over which abutting property owners have no easement or right of access by reason of the fact that their property abuts upon such highway and access to which may be allowed only at highway intersections designated by the director."
Paragraph three of that section, quoted above, was obviously enacted to remove any question with respect to the authority of the director to alleviate the consequences of his elimination of access to a limited access highway. It was intended to authorize the director to provide access from areas which are adjacent to, near to, or which abut a limited access highway. Rothwell v. Linzell, Dir., 163 Ohio St. 517.
A service highway, such as the road in question here, although primarily designed for the benefit of an individual but which eliminates traffic hazards and makes a limited access highway safer, becomes an essential part of the entire limited access project. Respondent has authority to acquire a perpetual easement over the land in question. See May v. Ohio Turnpike Commission, 172 Ohio St. 555.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and O'NEILL, JJ., concur.