People ex rel. Department of Transportation v. Sullivan

Opinion

KINGSLEY, J. The state seeks to condemn in fee a parcel of land adjoining a state highway and to condemn an easement in property [122]adjoining the parcel to be taken in fee. After a hearing in which the issue of the right to condemn was decided against the landowners,1 the parties stipulated to the amount to be paid and a final judgment of condemnation was entered. The landowners appeal; we affirm.

In light of the stipulation, the only issue raised and argued on this appeal is the right of the state to condemn the fee and easement involved. The landowners raise two contentions; (I) that, in fact, the state is not using the condemned property; and (2) that there was no environmental impact report for the proposed use of the property. We reject both contentions.

I

Originally the state sought to condemn in fee all of the property herein involved and it secured an order for immediate possession. Negotiations followed, resulting in an amended complaint seeking only an easement over part of the property. Some two years had elapsed before the case came on for hearing on the amended complaint. The highway involved is in an area subject to earth slides, one of which had seriously damaged the highway requiring extensive repairs. The purpose of the condemnation, as disclosed by the evidence, is to provide two things: (1) a relatively secure slope adjoining the section of the highway predictably subject to future slides; and (2) to provide a means of access for any future repair work. Admittedly, the property has not been subjected to any work since the possession was obtained and remains in its precondemnation condition as a heavily wooded slope adjoining the highway.

We agree with the state that the property has, nonetheless, been “used” for the purpose intended. The state is entitled to protect its highway against potential future damage; it need not wait until another slide occurs and then proceed to condemn property then immediately needed for repair work. The doctrine that “they also serve who only stand in wait” is equally applicable to property as to persons. The property herein involved is being “used” by the state for the purpose of maintaining its highway.

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