While there is a dearth of judicial opinion on the question of the abutter’s right of access to newly created highway facilities, unless there is a reversal of judicial doctrine in many States the owner of abutting property is likely to possess the same right of access to new roads as he has with respect to old, established highways. The theory seems to be that the proprietary right of access of the abutter accrues as a matter of law the moment the new facility is opened to traffic. Granting that the doctrine of accessibility is logical in the case of existing highways, it seems unreasonable with respect to new through-traffic facilities. Yet, the concept of limited-access highways to facilitate the efficient movement of through traffic is of such recent emergence that the judiciary has not had the opportunity to endorse or reject it on its merits. It may well be that a crystallization of public opinion will constrain the courts to take a liberal view of the matter.
There are only 17 States[1] that now have on their statute books laws specifically sanctioning the establishment of limited-access highways. Bills designed to accomplish this purpose, which were introduced during the recent sessions of legislatures in 4 States,[2] failed of passage.
The availability and use of such specific authority for the denial of access where necessary is absolutely essential to a proper development of the interregional system in all States; and the necessary statutes should be enacted at the earliest possible date. As a guide to effective language for such enactments, the Public Roads Administration has prepared a model limited-access highway bill, which incorporates the best features of the several existing statutes and contains all necessary provisions. This model bill is attached hereto as appendix III.
In the absence of a law clearly establishing the power of appropriate public authorities to create limited-access highways, an attempt, by negotiated compensation, to restrict abutters’ rights of access to any section of existing or new highway could be obstructed by any unwilling abutter and probably by any other opposing individual or group. Without such a law the power of public agencies to extinguish private rights of access by condemnation would be in doubt and authority for the expenditure of public funds in compensation for such rights would be equally in doubt.
In 10 of the existing limited-access highway laws the State alone is given authority to establish such facilities. Since the necessity for limitation of access arises mainly in connection with the service of extraordinary volumes of traffic in and near urban centers, it is highly desirable that the power to create and participate in the creation of limited-access facilities be extended to city and county highway authorities, as provided by the recommended model bill.[3]
- ↑ The States of California, Colorado, Connecticut, Florida, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New York, Ohio, Rhode Island, Texas, Virginia, and West Virginia had enacted such laws as of September 1, 1943.
- ↑ Arizona, Delaware. New Mexico, and Utah. On September 1, 1943, bills were pending in the legislature of Missouri, then in session, and in the legislature of New Jersey, in recess until November 15.
- ↑ For a fuller discussion of the extent of authority conferred by the various existing laws on limitation of access, see Public Control of Highway Access and Roadside Development, by David R. Levin, Public Roads Administration. Federal Works Agency, 1943.
