Cribbet, john E.

English

University of New Mexico

Volume 4 
Issue 1 New Mexico's Uniform Commercial Code 
Winter 1964 
Netherton, Ross D., Control of Highway Access 
john E. Cribbet 
Recommended Citation 
john E. Cribbet, Netherton, Ross D., Control of Highway Access, 4 Nat. Resources J. 205 (1964). 
Available at: https://digitalrepository.unm.edu/nrj/vol4/iss1/18 
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Control of Highway Access
By
ROSS D. NETHERTON
Madison: The University of Wisconsin Press. 1963
Pp. xxvi, 518, $10.00
The transformation in the way men live in an industrialized soci-
ety, the shift from the feudal manor and a rural society to the city
and suburb of the metropolitan area, outmode old ways and, with
them, accepted legal doctrines and administrative techniques. In
particular, the rules of land law have been subjected to massive pres-
sures. Since the end of World War II the statute books and judicial
opinions have reflected the attempts to provide a new synthesis for the
law governing property.'
Control of Highway Access is a study in depth of one aspect of this
transformation in the way men live in an industrialized, urbanized
society. As such, it is an excellent contribution to the exploding body
of materials on land-use planning. It is a far more important book
than its technical-sounding title discloses because, while its specific
subject matter is the limited-access highway, it illuminates shadowy
areas across the full spectrum of modern land utilization. It is a
book which should be read and, indeed, studied by all those who are
interested in the critical problems which stand at the juncture of
property law and constitutional law.
Mr. Netherton, who has had extensive practical experience as
legislative counsel for the American Automobile Association, spent
full time in research and writing at the University of Wisconsin Law
School during 1960 and 1961, and the finished product shows the
influence of two of the leading scholars of that faculty. The volume
is an Anglo-American legal history of the public highway in the best
tradition of Professor J. W. Hurst and a prime example of the
great need for similar studies in specific areas of our rich legal
heritage. It is also a comprehensive analysis of that hazy no man's
land between regulation under the police power without compensa-
tion and taking under eminent domain with just' compensation.
Here, where private property begins to disappear or be clarified
1. Haar, Land-Use Planning, at vii (1959).
2. As to how "just" the compensation may be see Haar, id. at 470-556. Professor
Haar has justifiedly labeled these materials "The Riddle of Just Compensation."
NATURAL RESOURCES JOURNAL
(depending on your point of view) under the impact of zoning,
subdivision controls, official maps, comprehensive plans, develop-
ment rights, etc., Professor J. H. Beuscher has long labored as a
pioneer. It is gratifying to see these diverse, yet unified, concepts
of land-use planning pulled together in a functional study of the
limited-access highway. This review is a tribute not only to the
author, Mr. Netherton, but also to the broad program of land-use
studies at the University of Wisconson Law School.
The book is well-organized and easy to read. It consists of three
basic parts-the legal relationship of the roadside and the road-
way, access-control powers and their uses, and valuation of access
rights-divided into thirteen chapters. The whole culminates in a
three-page final appraisal which demonstrates the author's faith in
law as a positive force in adjusting the pressures of a dynamic soci-
ety. There are three appendices, including a useful glossary of terms
and diagrams of leading cases on control of highway access.
Throughout the book, there are many graphic illustrations of the
problems being discussed, and they add immeasurably to the clarity
of the exposition. Seldom does the discussion become too abstract,
and this is partly due to the excellence of the diagrams. There are
almost one hundred pages of notes placed at the end of the volume,
just before the index. This handling of the documentation adds to
the eye appeal of the book and is probably best for the casual reader.
It is annoying, however, to the specialist and leads to wasted time
and constant page flipping. Contrary to the great Gibbon in The
Decline and Fall of the Roman Empire, Mr. Netherton is not at
his best in the footnotes, but he does have some thread of argument
and several interesting points that may be lost by this back of the
book burial.
Thus, on page 318, there is a discussion of the valuation prob-
lems where land is devoted to highly specialized uses. Nothing in
the body of the text is half so fascinating as the note (on page 504)
which says, in part, "Consider, for example, the extreme case where
highway improvement plans called for taking part of a golf course
so as to reduce the course from 18 to 17 holes." 3 Even non-golfers
are reduced to anguish by this preference for cars over golf carts
and yet the whole point may be lost by the scholar's easy surrender
to the book making stylist.
The organization of the book leads to one other mild, general
criticism. Because history, power to create limited-access highways,
3. It might have been worse. Suppose they had taken the nineteenth hole!
[VOL. 4
BOOK REVIEWS
regulation of land uses, and valuation techniques are discussed in
separate parts, there is a certain amount of overlapping and, when
read straight through, one has the feeling of replowing old ground.
It would have been possible, by careful editing, to eliminate some
of this duplication and a tighter, shorter book would have resulted.
However, this volume is a valuable reference tool and the repetition
may be necessary in order to make each part of the book understand-
able. In any case, it is not so excessive as to bother the general
reader.
Turning from form to substance, the great contribution of this
book lies in its analysis of the property concept as expressed in the
rubric "access rights." We live in an era when population expansion,
scientific developments, and other factors are forcing a re-examina-
tion of our basic land law. Private rights a la Blackstone 4 are yield-
ing to public necessity expressed through the police power and
eminent domain. If property is taken or damaged (depending on
jurisdictional variances) by the State, then just compensation must
be paid. But what is property? Laymen, and some lawyers, tend to
think of property in a static, clearly defined sense, as if it were
frozen at some specific moment in history, probably the passage
of the federal constitution. Not so, says Mr. Netherton: "Thus,
while 'property rights' under American law enjoy a reputation for
permanence, they are in fact more highly relative and more sensitive
to changing economic factors and social opinion than most other
legal concepts. ' He then proceeds to demonstrate the truth of this
thesis by exploring the relatively recent and limiting origins of the
right of access. In the end, whether access rights are a part of the
traditional "bundle of rights" that make up property will depend
on whether the law will grant compensation to the abutting owner
when they are "taken." Courts cannot start the process of decision
by looking at a closed category labeled "property" and then award
fair market value if the right fits the category. They must face
squarely the fact that if they grant compensation they are creating
property. "The law must be prepared to carry out its role as arbi-
trator between these competing demands,"" i.e., the demands of the
4.
There is nothing which so generally strikes the imagination, and engages
the affections of mankind, as the right of property; or that sole and despotic
dominion which one man claims and exercises over the external things of the
world, in total exclusion of the right of any other individual in the universe.
Blackstone, 2 Commentaries on the Laws of England, ch. 1, at 2 (15th ed. 1809).
5. Netherton, Control of Highway Access 80 (1963).
6. Id. at 381.
MAY, 1964]
NATURAL RESOURCES JOURNAL
travelling public and the roadside landowners. The chief value of
this book is the light it casts on the nature of that choice.
This is a legally sophisticated book, and Mr. Netherton is quite
familiar with all of the tools of land-use control. He makes clear
that even if abutters' rights are property in the particular situation
those rights may be regulated rather than taken, providing the land-
owner is left with some freedom of use. Nowhere is the process of
legal balancing better illustrated than in the determination of per-
missible use of governmental power. "A realistic description of the
distinction between eminent domain and police power methods must
recognize that in some cases this difference is sometimes a matter
of degree."17 The discussion of the "matter of degree" does not
provide answers to all of the questions the author raises( indeed,
one would be suspicious if it did), but it does something more im-
portant-it identifies and clarifies the area of choice.
If the less drastic methods, viewed from the highway builder's
perspective, of regulation under the police power, control of access
through the law of nuisance, or acquisition of rights by negotiated
purchase, fail to provide a solution, resort must be had to the power
of eminent domain. Full treatment is given to the constitutional and
statutory scope of this power, including a succinct summary of "in-
verse condemnation," 8 but happily the author does not stop there.
He correctly focuses on the process of valuation as the final key
to the riddle of access rights, and the concluding portions of the
book analyze, in some detail, the concept of fair market value. Once
again, Mr. Netherton eschews pat answers as he compares the
economist's concept of value with the highly pragmatic lawyer's test.
Searching for the market value of abutter's rights (such intangibles
as access, accessibility, easement to view and to be viewed, right to
light and air, etc.) in a non-existent market is reminiscent of the
student's definition of jurisprudence' but the author is equal to the
task. He uses the technique of looking, in turn, at numerous varie-
ties of land use-farm land, suburban residential land, urban multi-
ple-unit residence areas, industrial sites, institutional sites, com-
mercial areas, and roadside business-in order to draw meaningful
conclusions about loss to the land owner. His most telling point
7. Id. at 131.
8. "The legal process by which a property owner may claim and receive compensa-
tion for the taking of, or payment for damages to, his property as a result of a high-
way improvement." Id. at 400.
9. The study of jurisprudence is analogous to the blind man who goes into a dark
room, looking for a black hat that isn't there, and emerges claiming he has found it.
(VOL. 4
BOOK REVIEWS
comes as he discusses the difference between access and accessibility,
a distinction frequently obscured by the judicial opinions:
Proper appraisal practice, therefore, adapts its search for evidence to
the peculiar function of access in the land use that is involved and
recognizes a distinction between access, referring to a particular means
of ingress and egress between the highway and abutting land, and
accessibility, referring to the relative proximity in travel time of land
being evaluated and the various centers of government, commerce,
employment, recreation, and the like, upon which land uses depend.' °
The stakes involved in appraisal methods are high. "An increase
of only 10 percent in the cost of right of way for the National
System of Interstate and Defense Highways-the nation's most ex-
tensive and important network of controlled-access highways-
would result in adding approximately $2,000,000,000 to the cost
of these public works."" As taxpayers all of us are interested in
keeping right of way costs at a reasonable level, but as citizens we
want to be sure that the cost is not borne more heavily by some, sim-
ply because their land lies in the path of an advancing civilization.
After all, our turn may come next ! The pressures which have given
rise to the controlled-access highway are already at work on water
resources, on the central core of cities, on sprawling suburbia, and on
every aspect of our dwindling natural resources. If parallel prob-
lems suggest parallel solutions, Control of Highway Access will be
an influential treatise for the land-use planners of the next decade.
JOHN E. CRIBBET*
10. Netherton, op. cit. supra note 5, at 342.
11. Id. at 378.
* Professor of Law, University of Illinois.
MAY, 1964]


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