HENRY A. MALONE & another [Note 1] vs. COMMONWEALTH.

KAPLAN, J. The plaintiffs, husband and wife, are owners of property in a rural area in the city of Westfield improved by a residence and by two buildings in which they have been operating a gift shop. They commenced an action in the Superior Court for Hampden County, pursuant to G. L. c. 79, Section 12, to recover for "permanent" diminution in the market value of their property caused, so they claimed, by the relocation of a part of a State highway on which the property abutted. [Note 2] A jury, answering special questions, awarded them $6,200 in damages. The Commonwealth appealed, and we transferred the case here on our own motion. The procedural posture of the appeal is such that if, on the facts now to be stated, the plaintiffs have no legal claim, judgment is to enter for the Commonwealth; otherwise the judgment entered on the verdict stands. [Note 3] We shall hold for the Commonwealth. [Note 4]

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The plaintiffs' property consists of twelve acres in Westfield on the border of the town of Southampton. The two nonresidential buildings, formerly used as a hardware store and gas station, were converted in May, 1968, to serve as a gift shop in which the plaintiffs sell pottery, pewter, and other gift items. The former use and the modified current use have been permitted as "nonconforming," the area being now zoned for agricultural use.

Before the relocation, which took place in 1969-1970, the plaintiffs' property fronted for about 700 feet on the easterly side of Route 10, a State highway extending in a generally northerly direction from Connecticut through Hampden County to Hampshire County and Northampton. The distance from the side line of the shop to the margin of the highway was about nine feet. The relocation occurred as part of a project for widening and reestablishing 11,500 feet of Route 10. Some 1,500 feet, including the 700 feet adjacent to the plaintiffs' property, which had been in the form of a curve or crescent, was straightened by means of a new section connecting the terminal points of the curve. The curved portion was rebuilt as a connector road in the shape of a half circle, and it occupied much the same ground as the previous curve.

In the result, the plaintiffs' property abutted on the connector road for the same length that it had abutted on Route 10. The connector road extended for about 450 feet on either side of the plaintiffs' shop before entering at either end into Route 10. The store was now about 215 feet from the center of the reestablished portion of Route 10 and about ten feet higher in grade. Traveling north from Westfield on Route 10, a motorist could first see the gift shop about 210 feet before he reached the turnoff for the connector road (a view of the lower part of the shop, however, was blocked at that point by an embankment). On the approach from Southampton, the line of sight to

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the shop was obscured by some trees in the area bounded by Route 10 and the connector road. [Note 5]

There was testimony by a real estate appraiser that, before the relocation, the highest and best use of the plaintiffs' property was for a retail store; now it was for storage. Whereas the fair market value of the residence had increased, the value of the property as a whole had declined (this had resulted in an abatement of property tax). The plaintiffs, however, continued to operate the gift shop.

By G. L. c. 81, Section 7, for "injury ... caused to the real estate of any person by the laying out or alteration of a state highway," compensation may be recovered under G. L. c. 79, which provides in Section 12 that "[i]n determining the damages to a parcel of land injured when no part of it has been taken, regard shall be had only to such injury as is special and peculiar to such parcel." [Note 6] The language "special and peculiar" came into the statute in 1918

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(St. 1918, c. 257, Section 187 [12]), [Note 7] but the same limitation had long been recognized by the courts under enactments cast in general terms. Thus in Smith v. Boston, 7 Cush. 254, 255 (1851), a case of discontinuance of part of a street, the court spoke of "a peculiar and special damage, not common to the public" (per Shaw, C.J.).

The plaintiffs suggest that they have suffered such damage because "[a]ccess to a public way is one of the incidents of ownership of land bounding thereon" (Anzalone v. Metropolitan Dist. Comm'n, 257 Mass. 32, 36 [1926]), and the relocation here, as they contend, deprived them of all access to Route 10 which could be considered reasonable or suitable, considering the use to which their property was being put.

We have maintained a distinction between, on the one hand, impairment of access which if substantial may figure as special and peculiar injury deserving compensation, and, on the other hand, diversion of traffic which lies outside the compensable category even if it results in a decline in a property's market value. The distinction was suggested in Smith v. Boston, supra at 257, and taken as well settled in Stanwood v. Malden, 157 Mass. 17 (1892), again a case of discontinuance of part of a street, where Holmes, J., said, "[I]t is not enough to show that a shop has suffered by the diversion of travel, or that the owner finds travel less convenient at a distance from his place, if the access to the system of public streets remains substantially unimpaired." Id. at 19. It was "intelligible"

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for the Legislature to have acquiesced in an interpretation of the statute which held that "only the loss of access, the comparatively palpable injury, should be paid for, and not the advantage which the landowner had had the luck to enjoy of being where the crowd was; somewhat in the same way that the common law refuses to recognize the damage, often very great even measured in money, caused by cutting off a view." Id.

Our decisions have not erred on the side of lenience to claimants in placing situations in the class of actionable deprivations of access. Thus in Tassinari v. Massachusetts Turnpike Auth., 347 Mass. 222 (1964), we held that no compensation was due where the street on which the plaintiff's store abutted was closed at one end in order to accommodate the construction of a nearby tunnel, and vehicles visiting the store had to back out the length of the street in order to exit. We recognized that the value of the property had been diminished in consequence of the physical change; still the damage "is not special and peculiar, but ... the same in kind as that of the general public, although it may be relatively great in degree." Id. at 225, quoting from Hyde v. Fall River, 189 Mass. 439, 440 (1905) (Knowlton, C.J.). In LaCroix v. Commonwealth, 348 Mass. 652 (1965), the construction of a so called "limited access" highway, one with relatively few entrances, deprived the plaintiff of a direct route which he formerly had to a State road and obliged him to navigate a distance of several miles to reach that road. The plaintiff, a real estate developer, had purchased the property with a view to creating an industrial park, but after the highway construction the property's highest and best use was residential rather than industrial and its value was much reduced. The case, we said, was governed by the principle that "a landowner is not entitled to compensation merely because his access to the public highway system is rendered less convenient, if he still has reasonable and appropriate access to that system after the taking." Id. at 657. There have been many decisions on the

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same lines. [Note 8] On the other hand, we have allowed compensation where, through abolishing a grade crossing and constructing barriers, the main although not the exclusive route was eliminated from the claimant's loading platform to the public roads. Betty Corp. v. Commonwealth, 354 Mass. 312 (1968). Of course compensable injury has been found where "barricades ... [shut] off access to the petitioner's premises from the general system of the public highways of the city." Wine v. Commonwealth, 301 Mass. 451, 458 (1938).

We do not deal here in absolutes. As indicated, loss of access need not be complete to justify an award; indeed, in any case there will remain some way to reach private property. Circuity of access may be rendered extreme to the point of counting as a substantial impairment of access. See Sheehan v. Fall River, 187 Mass. 356, 361 (1905). Thus the problem in each case consists of assessing a variety of factors, including most notably the existence, availability, and feasibility of routes, all in connection with the uses to which the property has been (or may be) put, to determine whether the claimant or his patrons, previously in a reasonable relation to a road system reaching the property, have now been left without such a relation. See Van Alstyne, Just Compensation of Intangible Detriment: Criteria for Legislative Modifications in California, 16 U.C.L.A.L. Rev. 491, 512-522 (1969).

We need not recanvass past decisions minutely, or examine whether in particular cases claimants may have been too harshly treated, for the present case fell far

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short of the line of liability and involved no such question of doubt as should be put to a jury. [Note 9] The relocation of the section of Route 10 did not landlock the plaintiffs' property; it did not create a dead end street or road; neither the plaintiffs nor their customers were deprived of vehicular access to the public highway system. The plaintiffs had as much frontage on the connector road as they had on Route 10 and they need go only 450 feet in either direction on the connector road to reach Route 10. We may take it that by reason of the relocation the gift shop was less visible from the highway, and a customer seeking to reach the shop must turn off the highway and travel a short distance on another road. Although the diversion of traffic may have caused some retrograde change in the highest and best use of the property, the property remained fully accessible to customers. Thus the loss of value was not compensable under our traditional approach. See LaCroix v. Commonwealth, supra; LaBriola v. State, 36 N.Y.2d 328 (1975). On facts like those at bar, numerous jurisdictions would join us in reaching the result portended here. [Note 10]

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Argument not without some persuasive force has been offered for extending compensation for changes of traffic patterns not so drastic as to amount to deprival of "access," but nevertheless causing material injury to the values of particular properties; [Note 11] and there may be argument in a more general sense for going beyond the conventional legal boundary to cover a range of "intangible" private losses incident to carrying out public projects. [Note 12] Economic "efficiency" would be served, it may be said, by a rule requiring payment for the variety of such losses, since that would impel careful consideration of the true total social costs of these projects before they were launched. [Note 13] Such an approach would be consistent with a fundamental notion of the law of eminent domain, that when governmental activity is intended to benefit the generality of people, it is the public, not particular citizens out of the mass, who should bear the costs. It seems not an entirely satisfactory answer, although often given, to say that costs of this type tend to even out over time,

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or to assume that they are regularly and reliably discounted in the market prices of the affected properties. [Note 14] Cf. Skyline Homes, Inc. v. Commonwealth, 362 Mass. 684, 686-687 (1972).

However, we have everywhere about us instances of particular injuries following upon governmental action which by common understanding are not expected to be paid for out of the public treasury: the owners of liquor dispensing establishments could not claim compensation if a law raising customers' age qualifications should be proved to reduce their receipts and put their businesses at a continuing commercial disadvantage in relation to their competitors across the State border. See Felix v. Milliken, 463 F. Supp. 1360, 1386 (E.D. Mich. 1978). General acceptance that such losses should lie where they fall derives, we are told, from an intuitive or lay perception about the attributes of private property; in that view, traffic flow would not be thought of as property. [Note 15] Thus it is only "loss of access, the comparatively palpable injury" (Stanwood v. Malden, supra at 19) that makes an appeal for recovery. The effort, moreover, to identify the comparatively impalpable injuries inflicted by highway relocations or other projects, and to settle or litigate the claims, would involve an expense that might run so high as unduly to discourage the projects in the first instance. [Note 16] And if efficiency and equity were thought served by requiring

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the public to make good the incidental private detriments attendant on public improvements, then it might be considered inefficient and inequitable not to require private contributions to the public treasury to the extent of the corresponding benefits resulting from the improvements. Yet to exact such contributions, especially from property owners who profess to prefer not to receive the benefits, would appear quite awkward; whereas to forgo the exactions, while requiring the government to pay the private costs, might tend again to deter useful public improvement projects. [Note 17]

So it is understandable that the Legislature should have acquiesced over a very long period of time in the limitation of liability established by the courts despite its somewhat arbitrary delineation.

The judgment entered below will be vacated and judgment will enter for the Commonwealth.

So ordered.