*1 16832. In Bank. Dec. F. No. 1943.] [S. BOARD OF BACICH, Appellant, CONTROL
GEORGE al., Respondents. THE OF STATE OF CALIFORNIA et *2 Hubbard, John J. Batistich and & J. C. Hubbard Miller Appellant. *3 Warren, Earl Webb, Attorney General, Attorney U. S. Gen- Attorney Kenny, General, eral, Dailey, Dep- W. John J. Robert General, Carleton, Attorney Robert uty Reed, C. C. E. F. M. Heller, M. MeAulifEe,Albert Monaco and Ehrman, White & Respondents. McAulifEefor
CARTER, J. The demurrersof defendants Board of Con Toll-Bridge Authority trol, Department California State plaintifE’s complaint damages Works to Public this in inverse condemnation were sustained action without leave amend. alleges improved PlaintifE that he is the owner of an lot Sterling on the west side of Street situated between the Bryant of that street with Street and intersection Harrison County in the of San Francisco, Street the two being parallel; streets that before the construction latter improvement hereinafter Harrison mentioned Street was Sterling he had access from level with Street and his lot by footpaths railway; Harrison Street and street a street that railway extending along Sterling property; Street his served formerly that area around his was used purposes; approaches residential of the construction Bay Bridge to the San Francisco defendants resulted lowering of fifty Harrison feet, Street leaving as the only thereto access an almost perpendicular flight steps, destruction residence property area, railway, removal of the street and the erection of an elevated highway between his lot Bryant Street which he must pass under to reach the street; latter reason foregoing damaged has been $14,- the sum of 000; and that he filed claim for damages those with de- fendant rejected. Board of Control which was
The demurrer of defendant State Board of Control was properly sustained inasmuch as it nothing had to do with construction of improvement alleged or damag ing plaintiff’s property. charged It is not that the Board Control, agency, a state anything had to do with the con struction of improvement, being only interested as recipient for damages by plaintiff. claim filed
The failure to name the State of party California as a require defendant does not judgment. affirmance complaint all necessary contains the elements to state against ease the State and agencies has named the state capacity charge their as such which had of the construction of the improvement. against The action inis effect one request State. Plaintiff’s for leave to substitute the State party in place defendant of the Control, defendants Board of Toll-Bridge Authority, Department California of Public granted. Works (California should have been Securities Co. State, 111 Cal.App. Under cir those necessary cumstances it is not to consider Toll- whether the Bridge Authority statutory under powers authority its had anything do with reference to the construction im provement alleges plaintiff damages. caused the
The instant action predicated upon the constitu provision tional private property may taken not be damaged for a public purpose payment just without the compensation. (Cal. I, 14.) Const., art. sec. That clause of *4 self-executing Constitution is and hence neither consent remedy legislative to sue the by State nor the creation of a necessary enactment (Rose is obtain relief to thereunder California, State 505]). Cal.2d 713 relating Sections 667 and 688 of the Political Code to against claims an re State do not constitute obstacle to covery liability on the 688 by involved. Section its terms here for only “express contract or claims based applies to negligence.” upon here based The claim involved one power exercises its liability when the State incurred customary pursuing procedure eminent without domain is in con the cause action inverse therefor. such a case express not founded either contract demnation supra.) negligence. (Rose California, or State “Any having part person Section states that: against state, claim the settlement not other provided law, present must to by wise same the board for meeting legislature, of the at least four months before constituting accompanied showing facts by a statement complaints claim, verified in the same manner as civil any finally passing upon claim, actions. such notice Before hearing of the time must be mailed to the place claimi days ant least to set for final prior fifteen the date action. designated At time proceed must to examine board adjust may support such claims. hear evidence against and, governor, of the re them with sanction port legislature such amd recommendations facts concerning added.) proper.” (Emphasis them as
From the it is portions italicized that section indicated purpose orderly procedure its to an was establish Legislature which the against would be of claims advised State in provision instances no had been where made their payment. Legislature would then be position determine, light investigation to in the and recom mendation of the Board of whether or not should Control it make an appropriation pay purpose That is also the claim. evidenced from appearing other sections the same article of the Political For illustration, Code. section embraces presentation controller claims the state where appropriation has been made. Section authorizes the con approved, troller draw a for a he has and if warrant claim disapproved together report file with his with the Board appropri Control. Section involves claims where no ation pay has been made or no fund is available their ment, provided law, the settlement of which is or where fund approved has been exhausted. Such claims Legislature. Board Control be transmitted to the shall Section 667 deals with the situation where no mode of settle Essentially, ment of provided by the claim been law. has *5 those sections deal with the means and payment methods of claims, the conditions under which funds in the state may treasury be pay claims, obtaining allocated to and the appropriation of an Legislature from the when no are funds They available. are concerned with the of the mechanics financial operations of the State with relation payment claims. In order payment to obtain of a claim from funds therefor, available or if not available from appropriation Legislature, requirements of those sections must requirement The be met. that claims presented be at least four months meeting Legislature before the give of the is to opportunity investigate Board Control an them, enabling ensuing Legislature thus give more in- them telligent consideration. The clear intent of the statute if a claim is to given be consideration at the next session of Legislature it presented should be four prior months investigation thereto and an made.
Section 667 no provision makes rejection a flat approval of the claim the merely board. states that the shall, board with the sanction governor, of the report to the Legislature such recommendations proper. facts (See Gage, Sullivan v. 537], con sidering requirements similar in the Political Code as then written.) provision No steps made the next available claimant if the recommendation is The unfavorable. section does not specify Legislature what session of four period months’ must precede; is, whether it is the following session next the accrual of the claim or some sub sequent session. If during the claim accrued months’ the four period immediately preceding Legislature, a session of the certainly compliance could not be had with the section ensuing next session Legislature were meant. If the claim accrued four days months and before two the next ses sion the Legislature, only claimant would have two days in present clearly which to That would be claim. when unreasonable we consider that his created protected by the bearing upon Constitution. Also as in Legislature tent that, it should be noted Legislature (Stats. added section 688.1 to the Political Code 1941, eh. 982, p. 2618), expressly it where for the first time provided that claims must be filed with the board cases inverse condemnation adopted section 688 for the re quirements adding relation thereto. act that section theAt actions. pending inapplicable declared expressly All of pending. was instant action adoption the of its time case that in the the intent manifest foregoing factors the Consti- predicated condemnation in inverse claim 667 does not re- 14) I, section (Cal. Const., art. see. tution of Control as a Board with the quire filing of a claim limitation thereon, nor as a precedent to an action condition *6 commenced. action must be upon time within which an by filed claim Hence, sufficiency and timeliness is immaterial. plaintiff in the instant action in this ease is whether major presented issue or The under the constitu plaintiff may compensation recover 14) light (Cal. Const., I, in the tional art. sec. provision thereto under the by the facts him. He is entitled stated has taken or wording provision property that if his been damaged question de public for a use. The solution of that pends largely property and his upon the character extent of right. right impaired property If he has a it has been and damaged, m'ay frequently or he recover. The test mentioned by authorities, may that recover he has suffered he damage peculiar kind, to himself and different as differ degree, by gen entiated public from from that suffered erally, is If problem. assistance in the solution of no damage property right impaired, he has a has and it been necessarily peculiar from to himself and is different kind him public suffered as a member of the or public generally, right prop particular property his erty public owner and not as a has been member damaged. (See California, supra.) Rose v. State of property the instant case concerned with a we are right right known as the an has in the access which owner street property appur which his and which is abuts tenant to abutting such property. The function the court is to determine and define the character and of that extent right. right access, being by general The in na- its terms ture, requires definition and clarification as its and extent especially character. This is true where we are concerned with the constitutional provision requires that com- which pensation paid damaged. be where The is taken or property right firmly generally access established. long recognized has been in this state and elsewhere
that an owner of property abutting upon street has
350 property right in the nature of in the easement abutting which is appurtenant to his distinguished his right, as from his right as a mem public. ber of the That has been described as an ease egress of ingress or, ment from to and his generally, right of access over the street to and from property, given must impair be for an ment question We are not thereof. now inclined disturb (See California, that rule. Rose v. Eachus supra; State of Angeles Ry. v. Los Co., etc. 103 614 P. 42 Am. Cal. [37 Rep. 149]; St. 214 City Angeles, McCandless Los Cal. 139]; Ry. Co., 208 Diego Lane v. San Elec. Cal. 109]; Engebretsen, Wilcox P. Cal. 750]; Ry. Co., P. Angeles Williams v. Los 150 Cal. 330]; P. P. Supervisors, Brown v. Board Cal. 570]; Petaluma, Geurkink P. Cal. Bigelow Ballerino, Cal.Jur. 333-335; Am.Jur., 181-185; 49 Domain, Eminent sees. 639.) origin 330; prop A.L.R. precise A.L.R. of that erty right generally is somewhat obscure but said declaring to have arisen court decisions such Eminent Do recognizing (See Am.Jur., existed it. main, reason, in 221.) 181; sec. For YaleL.J. *7 that determination of the extent character of rely, upon precedents most of discussion, the cases without the analogous present which ñt or are to the circumstances impres case one first question before court. If the the chiefly upon policy, its depends sion answer matters although factor times discussed which, the nature suggested It courts, left be usually undisclosed. underlying that on the eminent hand the policy the one through provision domain in the is to Constitution distribute individual community out the loss inflicted 221- (See 41 YaleL.J. making public improvements. 189-205.) 224; 52 3 Harv.L.Rev. 1176-1177; Harv.L.Rev. in con to domain clause Manifestly, the addition the eminent “or dam states, including California, of stitutions in most that aged” to an intent extend “taken” indicates word hand, On other policy to embrace additional situations. liber too allowed expressed compensation fears that have been im ally stop, beneficial seriously impede, will if not Davis (See greatly increased cost. provements because 850, County Commissioners, Mass. 218 However, it is said 334-337.) 13 Va.L.Rev. 11 L.R.A. ig policy that “the courts cannot spite that in so-called safeguarding of law principles nore settled sound and rights [improvement] may This of individuals. property public generally, prop great be of but convenience abutting ought not in order to erties of owners be sacrificed Sedgwick and, quoting it”; secure from on Constitutional Law: ‘‘ tendency system The under is too often to our sacrifice community; very and it individual seems difficult why pay property reason to the State should not show for destroys impairs value, which it as well as what it for (Liddick physically Bluffs, takes. ...” Council N.W.2d -Iowa-[5 degree opposed In some those policies are manifested in the conflict between the constitutional mandate that com pensation paid when damaged be taken or for public purpose of police and the exercise power where compensation paid. need The line not between those two clearly concepts is far from marked. will be recalled that alleged instant case it is reason of the lower ing fifty Sterling Harrison Street feet below the level of Street the access that plaintiff formerly had to Harrison Street from Sterling Street except has been now lost per an almost pendicular flight of stairs. The condition resulted from the con struction a public improvement, namely, approaches to a bridge spanning San Bay. Francisco It does appear not any compelling emergency or public necessity required its con payment compensation struction without the damaged. Therefore, the State may escape payment police under power. lowering ultimate effect of Harrison Street was to place plaintiff’s property in a Whereas, cul-de-sac. he before had Street, access to Harrison intersecting the next street from Sterling Street, he now has access in one only, direction is, Bryant Street, inter- next secting opposite direction. The existence ac- cess in general one system direction to of streets has been impaired only that there now left *8 extent is the stair- way. alleged Plaintiff formerly Sterling that Street was level with Street, may interpreted Harrison be to mean that general access was he formerly available. He does that state by had access footpaths. being streetcar line and That true his access those modes has except been lost stairway that the is a extent pedestrian substitute for access. respect that his property has placed been in a cul-de-sac. Moreover, request may leave to amend construed be showing formerly to embrace that Harri- there was access to son Street for vehicular traffic, at or least that awas there right way street, improved or unimproved, join- ing Sterling with Street Harrison it Furthermore, Street. is apparently conceded defendants that cul-de-sac has been plaintiff’s created. That damaged has been impairment questioned. cannot .be here allegation The his complaint has been must taken be true.
Whether or not impairment such compensable is depend must character and extent easement of his access. extend to Does it pass the next inter secting Nothing streets? ease; more need be decided this we are concerned with the correct rule in a case where beyond obstruction occurs intersecting the next street nor with may what rule property. Practically be for rural all hold, recovery authorities correctly, we believe that no may beyond be had where the obstruction is next inter secting (See street. Municipal eases 4 McQuillin, cited: Corporations ed.], 279-280, 1527; sec. Eminent Lewis on [2d Domain ed.], 350, 383, 203; Highways, Am.Jur., secs. [3d 318; c. 330; 639.) A.L.R. 93 A.L.R. se extent the easement of access said to be be that which reasonably required giving consideration to all the pur poses to which the adapted. is obvious that damage greater instant case the suffered and different than beyond if the obstruction had been the next intersect ing formerly street. Where plaintiff had an from his outlet property at Street, both ends Sterling he now has access only end, ingress egress one which definitely affects from his property. It would seem clear that the reasonable egress ingress modes of would embrace access to the next intersecting street in both It should noted that directions. is more than opportunity go extensive mere on to the immediately in front property. (Rose California, State supra.) We are not confronted with necessity balancing conflicting policies heretofore referred to Many without the of persuasive precedent. aid authorities and writers intimated have either declared or blocking the creation of a cul-de-sac, is,
353
to the next
intersecting
access
one
is com
direction
pensable, although the
opposite
access still exists
direc
intersecting
words,
tion to an
In
street.
other
the easement
(See
Highway Board,
is of that extent.
v.
47
Felton
State
Ga.App. 615
198]; City
Chicago
Baker,
S.E.
39
v.
[171
of
830]; City
Chicago
F.
C.C.A. 318
158 Ill.
Burcky,
v.
[98
of
178,
103
Defendants
that
are cases California
contend
Angeles,
trary
foregoing
City
In
Los
views.
v.
Wolff
862],
portion
of the street which
Cal.App.
P.
the
graded
prop
plaintiffs’
a
from
was
was
considerable distance
out
beyond
street,
intersecting
pointed
an
as was
erty and
City
In
Mateo
denying
hearing.
a
San
this court
not
Commission,
713],
it does
Railroad
Cal.2d
appear
closing
that
placed
of the street
the
crossing
owners
a cul-de-sac. Streets
railroad
from
way
closed,
appears
it
as far
were
but
is said that
county
road
upon
either
abutted
record
the railroad.
highway
state
the sides of
paralleled
which
Moreover,
pointed
out that the
owners were
is
and
parties
Railroad Commission
proceeding
to a
before the
adjudicate such
“not
to
attempted
commission had
in Rose
distinguished
referred
rights.” The case
to
was
that case
California,
page
at
731. While
supra,
v. State of
to
crossings
may
grade
may
pursuant
eliminated
hold that
be
holding
prop
police power,
interpret
it as
we do not
of a
the construction
erty
cul-de-sac
placed
public improvement
payment
compensation.
without
Brown
Bigley Nunan,
Cal.
Reference made
Neither
Supervisors,
P.
v. Board
124 Cal.
82].
con
Both of them were
of those
a cul-de-sac.
cases involved
Harg
(See
narrowing
of a
width
street.
cerned with
Bigley case
Hodgdon,
P.
ro
pecu
right of access is not
theory
is based
owner,
of har
liar
out
abutting
mony
California, supra, 727-
pages
with Rose v. State cited.
Brown case
authorities there
only
the board of
question before the court was whether
supervisors
power
of the street
to narrow the width
had
authority
its
vacate streets. The
virtue of
to close or
damages
question of whether an action for
under the Consti
apparently
tution would was not
The discussion
lie
involved.
contrary
unnecessary.
expressed
was
views herein
court,
Indeed,
quoted
opinion,
near the
its
with
close
Symons
approval
Francisco,
from
v. San
There more than merely a diversion of traffic when a is ability cul-de-sac The created. to travel to and from the general system of streets in direction one might lost. imagine One many circumstances, as has been by shown defendants, recovery in per- which should not be mitted or where the recovery reasons for in the cul-de-sac might cases logically not be applied, but we are here con- particular cerned with the facts of this ease and do not pur- port to declare the law for all cases under all circumstances.
The other damages by items of plaintiff claimed are not compensable. He residences, asserts that all except own, in in described area which his is situated were defendants, eliminated and that a railway street formerly operating Sterling Street has been removed. There no property right appurtenant plaintiff’s to on Sterling Street which entitles him to the maintenance of
356 existing operation or the residences continuous leaving the The of the residences and railway. street removal a nuisance. does did not constitute property vacant plaintiff’s property road between appear the elevated way to Bryant any interferes with his access Street any easement, exists, one impairs latter or air light, or view. directed judgment reversed, the court below is so complaint amend his if he be permit plaintiff expressed. conformity the views herein
advised with Shenk, J., Gibson, J., Sehauer, concurred. J., C. judg in the that the EDMONDS, J. I concur conclusion for reversed, should be but against property owner ment my And as associates. different from those stated reasons may public interest vitally the decision affects highway improvements essential largely whether determine incurring be made without transportation modern can for damages beyond the state or liability capacity reasonably I municipality pay, appropriate deem it to state I determination should grounds upon which believe the rest. legislation by way of or government acts, either
When the
any
legitimate means,1 to
promote
by the exercise
other
welfare,
large
safety, morals,
general
public health,
restricted, im
interests
area
exists
compen
entirely destroyed
or
such action without
paired,
resulting
loss
diminution
value
sation
Schoene,
246,
272
(Miller
S.Ct.
property.
U.S.
[48
L.Ed.
568];
Boston,
L.Ed.
Bowditch v.
U.S.
States,
U.S. 502
980];
v. United
Omnia Commercial Co.
773];
parte Hadacheck,
Ex
437, 67
S.Ct.
L.Ed.
1916B, 1248], affd. Hadacheck
584,
L.R.A.
Village
348];
60 L.Ed.
Sebastian,
143,
S.Ct.
U.S.
Realty Co., 272 U.S.
S.Ct.
Euclid v. Ambler
Des
Laundry
Moines,
71 L.Ed.
Northwestern
Kirkwood,
396]; Sligh
L.Ed.
U.S.
S.Ct.
Little
Reinman v.
S.Ct.
L.Ed.
U.S.
*12
very broad
used In a
expression ‘police power’ is sometimes
1“The
gov
every function of civil
sense, ineluding
legislation and almost
all
’’
257, pp. 971, 972.
Am.Jur.,
Law,
Constitutional
see.
ernment.
511,
Rock,
900].)
59 L.Ed.
This
237 U.S.
S.Ct.
power
government
public
to
act
furtherance of the
good
incurring liability
resulting injury without
for the
commonly
police power.
individuals is
known as the
many
It has
supposes
been held
times that the Constitution
pre-existence
power,
must
police
be construed
(Chicago
with reference to
fact.
& N.
R. Co.
W.
v.
Com.,
376,
Illinois Commerce
So far as the construction of
is concerned,
though
however, even
purpose
promote
be to
insure
their
the public safety and convenience,
of the State to
“private
take
property”
“just”
the payment
without
compensation,
has been expressly forbidden
both
emi
nent domain provision of the state Constitution
the due
process clause of the Fourteenth Amendment to the Consti
tution
(Cal. Const.,
of the United States.
art. I,
14;
sec.
Chicago
Q.&B.
R. R.
Chicago,
Co. v.
But recognized that not all consequen damage tial to private interests was intended included scope within the of the eminent domain clause. In the words Justice Mr. Holmes in Pennsylvania Mahon, Coal v. Co. *13 358
260
393,
158,
L.Ed.
“Government
U.S.
S.Ct.
322]:
hardly
go
extent,
if,
prop
could
incident to
to some
values
erty
paying
every
for
such
could
be diminished without
change
Pennsylvania
general
in
under
the
law
the
statute
[as
mining
forbidding
consideration
the
of coal
feet
within
for
improved property of
fact
consid
One
another]....
determining
power]
eration in
. . .
limits
the police
[of
[the]
is the
diminution. When it
a certain
extent
reaches
magnitude, in
not in
exer
most if
all cases there must be an
cise of
act.
compensation
eminent domain and
sustain
question
upon
particular
So
facts.” The
depends
recognized
question
court
as to
when
required
private
a
to be made for
diminution in value
disposed
under
domain clause
the eminent
cannot be
degree.”
general
“of
propositions;
problem
is one
(p. 416.)
court,
California,
in
Also this
Rose v. State of
713,
505],
diminution
Cal.2d
P.2d
held that the
in
value of land
a
divert
public improvement
occasioned
ing
premises
main flow of traffic from in front of the
government may
noncomp
private
ensable. And the
condemn
jail
“pest
erect
property and
a
house” without
adjacent
compensating
the undeniable
property owners for
impairment
public
of their
a
of such
values as
result
(See
Angeles
614, 617
Ry.,
use.
etc.
Eachus v. Los
Rigney
Ill.
750, Am.St.Rep. 149];
Chicago,
P.
v.
64,
City
544,
550-552
80;
Ring,
Winchester
Ill.
Moore,
520]; City Geary
181 Okla.
A.L.R.
Vetter,
distinguishing
Oklahoma
891],
P.2d
1009].)
A.L.R.
Okla.
From these decisions it seems clear that a determination
resulting
from
in
land
as whether
diminution
value
from,
taking
public
distinguished
of the
improvement, as
a
use,
scope
land
for
of eminent
public
itself
within the
falls
necessitating
payment
requires
domain
of compensation
importance
a
affected.
consideration of the
the interest
Dist., 17
(State
Marin Mun. W.
Cal.2d
California
considering
the court
problem!,
this
indi
weigh
public
must
the relative interests
just
govern
at
vidual, so as
arrive
balance
order
unduly
exercise
proper
ment
not be
restricted
will
giving
time
public good,
its function
while
the same
in
domain clause of
policy
due effect to
the eminent
against
loss occasioned
suring the individual
an unreasonable
connection,
In this
governmental power.
the exercise of
value
diminution
must
made between
distinction
decrease
of an act of a
individual
because
improvemlent. Obvi
highway
resulting
public
from a
value
less
ready
protect
even
ously,
courts will be more
against
of land
connected with the use
important
interests
no
by private
whose acts have
interference
individuals
utility,
governmental power
exercised
when the
than
general
welfare.
public improvement
behalf
pro
Therefore,
interest has been
particular
the fact
that a
*14
by
against impairment
private person
does not neces
tected
against
importance, as
sarily mean that
is of sufficient
state,
“private property”
the
included in
term
to be
the
meaning
domain
of
within the
of the eminent
clause
the Con
(See,
example,
for
discussion of the distinction
stitution.
the
by
impairment of
individual and
by
between
view
proper highway
my dissenting
improvement,
opinion
People
Ricciardi,
799].)
post, p.
v.
390
P.2d
The factors
[144
are,
magnitude
to be
the
hand,
considered
on the one
the
of
dam
age
desirability
land, and,
other,
to the owner of the
on the
the
necessity
particular
type
improvement
and the
of
danger
granting
compensation
of
tend
retard
will
(Pennsylvania
or prevent
Mahon, supra;
it.
Coal Co. v.
Whitney,
Town Windsor
357, 366,
v.
95
369
Conn.
[111
354,
A.
669];
County
A.L.R.
Commrs.,
Davis v.
153 Mass.
848,
750];
Laconia,
L.R.A.
City
v.
Cram
[26
635,
N.H. 41
282];
City
A.
57 L.R.A.
Richmond
[51
v.
Hinton,
411];
affected require importance of the land is sufficient in the value domain clause the eminent under payment im necessary to consider the Constitution, it is interest land; since provement “damaging” of as a law, it be recognized protection as entitled “private prop right included comes a .term the state I, meaning of article section erty” within the however, the interest event, In Constitution. magnitude to warrant deemed of insufficient payment provision, domain compensation under eminent it.obvi scope within ously “private property” is not the land attributable diminution value of clause, and the falls within improvement, it, public to when affected the exercise of es uncompensated loss occasioned area Co. v. governmental (cid:127)(Pennsylvania Coal power. sential Mah 737.) California, supra, p. on, supra, see Rose v. State of has indicated the United States Supreme Court of And prop the interests recognition that the and definition of property” are essen erty “private term included within the tially permitted to determine each state matters which (Reichelderfer 315, S.Ct. Quinn, itself. 287 U.S. York, 206 v. New 331, 77 L.Ed. 83 A.L.R. Sauer 51 L.Ed. U.S. S.Ct. against necessity improvement balancing for a in order to damage by an individual the extent of sustained *15 no fear there need be compensation, determine the to rights to unduly will be subordinated individual governmental of rights society, of for each claimed exercise subject judicial to whether power is to examination as reasonable, and extent. both in nature means exercised are although (Town 369.) at Whitney, supra, p. Windsor And v. of arbitrary one. may apply, rule difficult it is not be to of the rea analogous An doctrine underlies a determination re negligence, of in sonableness conduct the law of quires weigh magnitude to of risk involved a court utility particular manner particular against in a act its or the 291.) Obviously, as (2 Rest., Torts, see. in which it is done. subject number, judicial increase decisions accuracy. increasing predicted with specific result a ease Haskell, 219 104 (No Bank U.S. v. State [31 ble recently 55 One rule announced 186, S.Ct. L.Ed.
361 problem approaching court such is that at least this property have no of action were owner would cause damage, can no com private person inflict the he claim Angeles, (Archer City Los pensation from the state. v. yet rights supra, But in p. 24.) the area individual inter by judicial decision, weigh uncharted court must , ests affected in each ease. question to com whether a owner is entitled
pensation
under
eminent domain
of the
clause
California
(art. I,
14)
in a
placed
Constitution
sec.
when
cul-de-sac
of a
the obstruction
vacation
one end
property abuts,
which the
where
but
the obstruc
directly
tion is
first
property,
not
is one of
front
Although
impression
California.
an interference with
abutting
right of
only,
owner’s
access
one direction
but
leaving
egress
direction,
a less convenient means of
in another
taking
has been
held
to be a
property within
prohibition
process
due
of the Fourteenth
clause
(Meyer
City
Amendment
federal Constitution
v.
Richmond, 172
82
106,
199]),
U.S.
41
S.Ct.
L.Ed.
[19
majority of
courts
which have
of a
considered the
damages,
owner to
under the eminent
clause
domain
of the jurisdiction,
being
placed in
al
a cul-de-sac have
recovery
lowed
those in
the block where the obstruction
occurs,
though
even
one
open.
entrance
the block is left
(Felton v.
Highway Board,
State
GaApp.
47
615
S.E.
[171
198]; City
Chicago Baker, 39
830];
v.
318
C.C.A.
F.
[98
City
Chicago v.
Burcky,
158
178,
Ill.
Am.
N.E.
49
[42
St.Rep. 142, 29
City
Davis
Chicago,
568];
L.R.A.
v.
Ill.App. 244
Atkins,
Falender v.
378];
N.E.2d
186 Ind.
[8
965, 967]; Highbarger
Milford,
71 Kan.
v.
[114
P. 633];
Freund,
Burton v.
[149
[154
351];
Uhl,
131], distinguishing
Krebs
duced courts *17 noncompensable when the dim pensable of and that another by occasioned properties of both is inution in value of the of far inconvenience act? So as the mere same inability by the traveling necessitated any additional distance concerned, compelling longer no to use the obstructed street by as it is logic, reason for a distinction is warranted such one whose justify compensation of difficult to the denial intersecting street directly first property is located across the owning on the allowing recovery person the lot while And exists. be corner of block which the cul-de-sac of the many cause confined consideration the courts have by they term the neces damage to what caused the obstruction sity “circuity travel,” that the allow the conclusion neigh recovery ance of should be extended to the whole not public improvements, borhood probable throttling with a deny compen has them to influenced substantial number of Indianapolis Ry., 141 altogether. (Dantzer sation Union ; L.R.A. 223, Am.St.Rep. Ind. 769] (Mass.) supra; Richmond, Nichols v. Cram Inhabitants of Laconia, Doherty (N.H.) supra; Henry L. & v.Co. Joachim, 146 Fla. So. Also some decisions majority recovery which treated follow view have an exception generally cul-de-sac as an the rule case by high proper circuity nounced that of travel occasioned way improvement, regulation, noncompensable item of damage. traveling
But occasioned of additional distances engineering modern more and to traffic to make travel safe adapt system disposal of the highway adequate increasingly heavy traffic—as, for burden of automobile ex- highways for various ample, the construction of divided types regu- traffic, one-way traffic re-routing or the an element prohibition lations or of left-hand turns—is complain damage not for which the owner (City Mateo v. arbitrary in the absence of action. San note 100 Com., 1, 9, see Railroad Cal.2d 491-493.) therefore, surprising is, A.L.R. not many in cul-de-sac cases compensation refused courts have question similarity so far as the problems of the because testing merits therefore, And, circuity is concerned. “circuity travel,” in the majority sense rule, mere to be tra- required that it additional distance refers to construction, should highway proper versed because aof to the owner justify be the allowance used the obstruction abutting where upon the street the block exists. the situa- however, difference, between
There a material one end of tion where owner in the block lots abut whose persons is obstructed that of the street Whereas intersection. beyond same the first of the street on formerly ends he had an outlet at both This is has but one. fronts, obstruction, he lot after the first inter- beyond the obviously not landowners true of the section, direction. they still have access either significance is this practical
But, may asked, of what *18 is con- distinction, damage owner property far to the so as in- or If, for business example, cerned? the land used for the in a where purposes, dustrial the fact it is block access, of may seriously easement street terminates affect the considering property. in use the full and beneficial of the either turn around or entering All vehicles the block must impairing the it, back in order to this extent out to leave vehicles, large such egress. of In of trucks or other case the highest the requirement may substantially a interfere with City (See v. property. and best use of Cartmell the of 102, 104].) the Marysville, Ky. And S.W.2d adversely affected than owner of a lot located is more so one-way to property upon one a street restricted whose abuts ingress egress possible. traffic, for in latter free and the case the Yet, though even the interference with the use of land materially is created is within the block where the cul-de-sac beyond intersec- greater property than the first that of the upon street, question remains whether tion the same materially as to property access to is so affected owner’s payment of under the eminent warrant provision of the California Constitution. domain uninterrupted by nu- necessity freeways, for arterial traffic dispose of vehicular intersections, merous in order to growing public concern! safely efficiently is a matter of damages to owners each street Allowance of formerly crossing highway is to be rebuilt for the which moving traffic for a dis- of fast or interurban requirements many miles, if confined to one block on tance of or even a few might prove to freeway, so burdensome as each side (See improvements. substantially or needed stop decrease supra, p. 850; Cram [Mass.], County Davis Commrs. supra; City Richmond Hinton H.], Laconia [N. 334-337.) Rev. It must be remem- Va.], supra; 13 Ya. L. [W. damages must be awarded also that the amount bered to defending hundreds of suits. probable expense added policy underlying however, At in time, view same Constitution, the court provision the eminent domain indi- give adequate recognition hardship must materially ending end, affecting, a dead vidual a block egress from his does, the property. as the obstruction constructing locating addition, possibility improvement way owner such as to leave along way with a direction out each that, connection with the limitation he abuts has direct liability compensation, placement order avoid improvement manner of must its construction reasonably unreasonably injurious than is more drastic required necessary example, ordi- to achieve the end. For objectives constructing freeway an arterial narily, egress project may provided method be served and a roads, construction of local service owners freeway, main into which the traffic from the paralleling the freeway at may pass enter or cross the loca- side streets (See People Ricciardi, post.) safety. tions consistent with Were the service roads be approved construction such by the proper highway use. of the land owned state for abutting purposes subjecting liability the state to without improvements, the cost of such property owners for such *19 item, definitely service roads would constitute ascertainable a estimating the obviating uncertainty in the in advance thus owners, the to be damages property were streets termi- circumstances, create Under such nated so as to cul-de-sacs. governing fail or refuse to where authorities include such relatively in part project, of the the few service roads as possible, the dam- their construction is situations where pub- age be borne the sustained the individual should case, by majority opinion in the Ricciardi creat- lic. But the ing every abutting upon property cause action in owner along the route of lane constructed for local traffic the certainly no state highway, arterial offers inducement highway and makes improvements, in to include such features and balancing respective public of the of the interests because circum- question. However, the land a close owner readily stances where, can be visualized after block closed end, at one the owner’s property access to his from the street may be effectively as blocked though an obstruction were placed directly in premises,1 my front of his opinion ques- tion of compensable impairment ingress egress should be left for trier of fact to determine. in ascertaining damage arising
But
amount
from
impairment
access,
jury may
of the easement of
consider
only compensable
relating
injury,
elements of
to the inter
ingress
egress
ference
with
to and
from the
inso
far as it affects the
adaptable.
uses to which the
Such elements as the additional distance which one is re
quired
upon
to travel
street
order
to reach
divergence
high
and the
of travel occasioned
way improvements
testimony
should be excluded from
the witnesses
jury.
(People
and the consideration of the
v.
Ricciardi, supra;
California,
737;
supra,
p.
Rose v. State
at
Indianapolis
supra; Grigg
Ry.,
Dantzer
Union
Hanna Lum
ber, etc., Co.,
Wagoner,
v. Van
Mich.
N.W.
[293
(Okla.), p. 619; Chicago Prigmore (Okla.), supra, at etc. supra, 91, 92; Henry Doherty (Fla.), at & pp. L. Co. v. Joachim Co., supra; Canady v. D’Alene Lumber Coeur Idaho (La. 830]; Jarnagin Highway App.), v. La. Com. supra; 634; (N.C.), supra, p. Sanders Town of Smithfield Chicago Ry. Railway (Wis.), supra.) & N. W. Com.
CURTIS, I agree J. the conclusion reached ma with concurring jority opinion ground in the expressed opinion.
TRAYNOR, J. I dissent. majority opinion declares of re- allowance covery largely “depends the owner this ease property right.” character and extent of his It seeks such a ingress egress which, declares, in the “being by general requires its terms nature definition and formerly street, stopped in example, 1For truck entered leaving, premises, then, front of the industrial con landowner’s direction, width along may, in the same because of the tinued blocked, street, around in it unable turn after one end is reason, the land. for that be unable use the street access to *20 is What follows clarification as its extent and character.” right amplifying to make it a basis re- a definition that present covery the case in terms the invasion of rights, rights. As there is no a new invasion traditional right by simple The process is created the redefinition. egress freely thus ingress frontiers are foregone very recovery question make advanced to the conclusion. he
The real basis of the must found the consid- decision grant recovery. key majority moved erations that the majority in the in the to those considerations lies statement “If its impression is one of first opinion question that the the depends chiefly upon policy, matters of a factor answer which, courts, although nature of at times the discussed By way pres- left usually is of revelation in the undisclosed.” opinion one case, goes on to that “on the ent declare policy underlying provision hand the the eminent domain community throughout the Constitution is distribute making pub- inflicted individual loss improvements hand, lic . . . On the other fears have heen expressed compensation seri- liberally that allowed too will ously impede, public improvements stop, not beneficial degree cost ... those greatly because increased some opposed in the policies are manifested conflict between compensation paid mandate that be when constitutional would damaged private property public purpose is or for a taken need police power and the exercise where paid.” not expect problem is solution will
One
led to
that the
weighing
is
clear
policies,
lie in the
it
of these two
but
A
majority
its solution in
manner.
arrives at
this
summarily
review
the facts
the rule
followed
would
which the case now stands: “It
seem clear
ingress
egress
access
reasonable modes of
embrace
intersecting
be noted
It should
next
street
both directions.
opportunity
than the mere
that the
extensive
more
property.”
go
immediately
on to
front of
stating
Having
why one
without
thus reached its conclusion
bal
policy outweighed
other,
opinion suggests
con
“We are not
policies
precedents.
anced
with the aid of
balancing
conflicting policies
necessity
fronted with
prece
persuasive
the aid of
heretofore referred to without
poli
weighing thus
dent.”
in doubt whether
left
cies
the persuasive precedents served as the basis of the
*21
opinion. There is. an intimation that it was the
in
latter
statement: “Many authorities and writers have either de
clared or intimated that the creation of
cul-de-sac,
is,
that
blocking
of access
intersecting
to the next
street in one
direction
compensable, although
is
still
access
exists in
opposite
intersecting
direction to an
words,
street.
other
the easement is to that
A
extent.”
list of cases from other
together
states,
with citations to texts and law reviews is
appended
support
this statement.2 The conclusion' is first
justified
reached and
suggests
then
a manner
in
that
a weigh
ing
policies:
of
“We
permitting recovery
do not fear that
in
cases of cul-de-sacs
in municipality
created
seriously
will
impede
improvements,
the construction
assuming
of
the fear
of such an event is real
damage
rather than fancied. The
is
owner
immediate and direct. The value of
the use of
directly
get
affected.
beTo
able to
onto the
immediately
street
in front
the property
is of
little
value
go.
that
as far
he
If his
can
access
intersecting
next
street
both
way
directions and one
is cut
off,
easement,
his
any
if it
all,
has
to him at
value
has cer
tainly
impaired.
been
conclude, therefore,
We
that the
of access extends in
intersecting
both
directions to
next
Being
street.”
more concerned with
the reduction
value
of plaintiff’s property than with
fear
that
allowance
persuasive
Meyer
precedents against
2There are also
this conclusion:
Richmond, 172
106,
199];
v.
St.
82
41
New York
S.Ct.
L.Ed.
C.
U.S.
[19
&
;
Bucsi,
City
L.
R. Co. v.
The is this whether plaintiff alleged damaged that was taken or existed all. at abutting longi If the in the owner has an easement tudinally direction, compen next intersection each paid impairment must for of sation be that easement. (See 527, Welch, 333, United 217 U. 339 S.Ct. States S. [30 787].) 54 L.Ed. If he does not have such easement can an he abutting recovery though prop have no even value of improvement. erty diminished a of the as result 315, (Reichelderfer Quinn, 177, 287 U. S. 319 77 S.Ct. [53 331, Angeles Ry. L.Ed. 83 A.L.R. Eachus v. Los etc. P.750, Co., 614, Am.St.Rep. 149]; 42 Rose California, 713, 737, v. State Cal. 2d of Chicago, 64, 80; City 505]; Rigney v. 102 Ill. Winchester of Ring, 550, 333, 520], 312 Ill. N.E. A.L.R. 921.) 118 A.L.R. history ingress in the nothing
There and any egress that to indicate it embraces such easement. The ingress egress judicial right of a creation of decision. ’ graphically origin rights de of abutters 3The of the whole doctrine in Muhlker v. New dissenting opinion in the Justice Holmes scribed Mr. Co., 522, 49 York and H. L.Ed. R. R. S.Ct. 872]: U.S. 1‘ property or of expressed in con plaintiff’s rights, The whether terms (See Hahlo, Crane v. S.Ct. 66 L.Ed. U.S. operation improvements Its as a limitation on street by municipalities originated public utilities in the New railway Story York leading elevated cases. In the case Co., Railway Am.Rep. v. New York Elevated N.Y. 146], injunction sought an was to restrain the erection of an railway plaintiff’s elevated street on which abutted. The court held that ele the use of the street for railway was purposes vated inconsistent with the use way purposes. city for street The had subdivided originally, conveyed the land lots, laid out the streets and containing land a deeds covenant that streets shown maps open should remain public forever as streets and ways. ordinary The court cited the grantor a mak rule ing conveyance map showing that refers can streets any not divert the lands to use inconsistent normal with the uses street. court held applied that this rule city in its role as Metropolitan subdivider. Lahr v. Railway Co., 528], Elevated however, N.Y. the court held that even where the abutters did derive their title from city covenant, and had express no such ease, Story they existed nevertheless an had easement of access to street. The basis of the decision was that whereby under the York New statutes opened streets were trust was public large created the benefit also abutting the benefit owners. The court held implicit easement however, access was in the Later, trust. it took to hold abutting care rights owner’s are sub to any ordinate reasonable use street made tract, all are courts, by way construction of the consequence deduced *23 from purposes dedication to and public They trusts of a the street. granted never predecessors were to him express words, or, or his in prob by any ably, implication. conscious If at the outset the York New courts apart that, express had decided from grant, statute or on a the abutters only rights public kind, street private any had the and no easement of very it way amaaing. possible would have been no It have would been advantages to distinguish practical the ex between commercial the pectation open right that a a had street would remain and in rem that would it plaintiff . . But if the easement over the femain so. . again, got appropriation of an whole street he to it as a tacit incident the street York public. possible It was for the New courts to the uses the ... held, they they hold, which had declared as seem to have that the easement right out of subject primary the the which to exist is fullest exercise any change public sprang, for the benefit and that street right, para I public against have called the travel matter of as what is a right plaintiff sitic which claims." York (Reining v. New general travel. to facilitate authorities L.R.A. 640, 14 N.E. Co., 128 N.Y. L. & W. R. N.E. N.Y. 31 Co., 217 H. York & Rigney v. New C. street was right to use the Presumably public street; lots sold the city reserved if the subdivided of the street was uses conversely normal compensation for the conveyed. or highway was condemned paid if or the street Commissioners, 153 Mass. (See County Davis v. 334.) While Va.L.Rev. 850, 11 L.R.A. times, change with
normal bound to uses of street are rights of invariably as are characterized the streets way. Angeles Railway Co., 103 Cal. Eachus v. Los heavily, relies
750, Am.St.Rep. 149], upon
plaintiff
which
owned
property
and sold the
city had likewise subdivided
York, later extended
plaintiffs. California,
like New
from
abutters’
to cases where title was
derived
easements
city.
The trust
of land for
appropriation
arises from the
large
public thoroughfares
public at
is for
benefit of the
only incidentally
abutting
The
the benefit
owners.
abutting
rights
present
extension of
owner’s
case
abutting
primary
makes the
consideration the benefit of
own-
ers rather
public.
than the benefit of the
Hitherto no Cali-
ingress
egress
fornia
as
case has ever defined the
or
intersecting
inclusive of an
street. The
easement
the next
egress
rule
ingress
has been that
is limited
adequate
and reasonable
from the
access
street,
street,
that it
the full
does not extend to
width of the
length
or to
thereof,
points upon
the full
or even to all
abutting
property.
front of
is sufficient
street
gen-
there is
that in
access to
turn connects with
street
system. Any
materially
eral
improvement
street
that does not
compensable damage.
with such
no
interfere
access does
city traffic
abound
California Vehicle Code and
ordinances
regulations
with
limit a
owner’s freedom
upon
abuts. Thus
movement
making
emerging
“U”
left
from
turns or the
turns
driveway
building
frequently prohibited,
are
one-way
the diversion of traffic
Fre-
into
streets
common.
quently
moving
opposite
separated
traffic
directions is
physical
curbing.
some
such
a raised
These re-
barrier
*24
they
strietions have the
effect
from
same
whether
ensue
traf-
is
regulations
fic
obstructions and
no more
physical
or
there
resulting
reason to
diminu-
allow
because of the
property
circuity
tion in
or the
values
inconvenience of
in
in
travel
case than
the other.
one
.
newly
right in
property
created
this case is inconsis
The
only
right
ingress
not
with the trust from which the
tent
egress
derived,
and
is
but with the
in
established rule
this
give
improvements
state and others
to
that
rise
no com
damage
abutting
pensable
injury
if there is no
to the
owner
in-
different
kind from that suffered
property owners
other
general
repudiated
and
is
in
public.
This rule
the ma
jority opinion:
right
“If he has a
it
property
has been
and
impaired,
is
himself
damage
peculiar
necessarily
and is
in
different
kind than that suffered
him as a member of
generally
for
particular
right
his
a property
as
damaged.”
a member of the public
has been
owner
assumption
This statement draws its conclusion from an
thing
.very-
proved.
question
to be
The
is whether or not the
right
owner has a property
has been impaired,
that
and it
pannot
drawing
be assumed
he has
without
a line between
property
and all the other
community.
majority opinion
When
draws the line
next
at the
inter
section it arbitrarily
attaches a
to abutting property in
street,
on
abutting
one block
but not
on
same street
in the next block or to
property abutting
neighboring streets,
though they may
even
likewise be dimin
ished
value
aas
result of the improvement
owners
may
similarly
circuity
inconvenienced
of travel. Re
depends
covery
therefore
accident
of location.4
Whatever
difficulties
in applying
arise
rule requir.-
concurring opinion attempts
4The
draw distinction between abut
ting owners in the block on which
owners,
the obstruction exists
other
ground
entering
on the
“All
vehicles
the block must either
turn
’’
or back
around
out
order to leave
This
is
it.
inconvenience
not essen
tially
circuity
different
from
of travel,
the inconvenience of
and it is not
compensable
very
concurring opinion
reasons advanced
also Jones Beach Boulevard Es
regard
circuity
(See
with
of travel.
Moses,
Ralph
tates N.Y.
A.L.R.
City
Zandt,
Hazen, 68 App.D.C.
v. Van
Fort Smith
68, 71];
F.2d
commonplace
operation
197 Ark.
S.W.2d
just as
to turn around on
or back out therefrom
motor vehicles
streets
it
space
turning
no
from
is to back
where there
out
egress
such
ingress
impaired
is no more
vehicles.
highway
one cannot
one-way
on a
street or divided
where
.than
situations
turn
around
back out.
case
particular
damage
facts
ing proof
special
635, 636, 57
A.
Laconia,
71 N.H.
(see
Cram v.
become
has
objective
standard
282]),
L.R.A.
*25
abandoned
years.
It should not
over the
property
rule of
major-
judgment of
subjective
the
merely
replaced by
to be
for com-
owners
singles
particular
out
ity of this court
of their
in the value
of
diminution
pensation because
the
circuity
travel.
the
inconvenience
peculiar
injury is
long
an
has
been established that
improvement
abutting
the
property merely
because
(Eachus v.
property.
causes a
in
diminution
the value of
750, 42
Angeles
Am.
Ry. Co.,
614, 617
Los
103 Cal.
P.
[37
forcefully
by Mr.
St.Rep. 149].) The
is
stated
Chief
rule
Quinn,
315, 319
in
287 U.S.
Justice Stone
v.
Reichelderfer
177,
“But
exist
331,
S.C.
77 L.Ed.
83 A.L.R.
[53
1429]:
by
protected
interests
generate
ence
value alone does not
against
government,
how
Constitution
diminution
ever unreasonable its
The beneficial use and
action
be.
abutting
is
when a
hence
value of
decreased
public
by public
street or canal is closed or
author
obstructed
ity, Meyer
Richmond,
82,
106, 41
v.
172
95
S.Ct.
U.S.
[19
240;
199]; Whitney
York,
L.Ed.
cf.
New
96
Fox v.
v.
N.Y.
104
Cincinnati,
928];
U.S. 783
Kirk v. Maumee
L.Ed.
[26
Valley
Co.,
802,
797,
507,
E.
279
73 L.Ed.
803
U.S.
S.Ct.
[49
963];
Boston,
(Mass.) 254;
Smith v.
7 Cush.
Stanwood v.
Malden,
[15 [26 171, county seat, S.Ct. L.Ed. or the location of a 413] 710) Commissioners, (25 Newton supra U.S. 548 L.Ed ] Co., & changed. (Bryan of a railroad is v. Louisville N. R. 650, 659].) no C.C.A. F. But in such cases infringed. “Beyond the common law traditional boundaries only imperative justification some policy will lead recognize courts to rights.... The old values new case is question rights alone, clear where of private is not but the was both value created and diminished as incident operations government. enjoyment For if .the of a government benefit thus from derived acts of legal rights were a source it perpetuated, to have powers government would be exhausted their exeriese.” holding adjacent that owners of land public park
had no park easement no re therefore claim to covery fire-engine because the erection of a house park that reduced the neighboring value of Mr. property, abutting Chief Justice Stone cannot declared: “The owner complain; damage ‘though suffered him greater degree than that of the rest same public, ’ ” also, kind. (See, Angeles Ry. Co., Eachus Los etc. 614, 750, P. 42 Am.St.Rep. 149]; Rose v. State California, 713, People Cal.2d 505]; P.2d Gianni, 130 Cal.App. P.2d Marengo, Stockton v. Cal.App. Levee Dist. Farmer, Cal. 178 No. 23 L.R.A. application in numerous cases in this state of the rule requiring a showing special damages has established law an obstruction cuts off the owner’s access from premises street, he has suffered a special injury. *26 (See Rose California, v. 713 State Cal.2d P.2d [123 505]; Angeles Ry. Co., Eachus v. Los etc. Cal. [37 750, 42 Am.St.Rep. City P. 149]; McCandless v. Los An geles, 214 139]; Ry. Cal. Lane Liego Elec. v. San [4 Co., 208 109]; Cal. v. Engebretson, P. Wilcox Angeles Co., Cal. P. Ry. Williams v. Los ; Petaluma, Cal. P. Geurkink Cal. v. 330] Bigelow Ballerino, P. Cal. P. 307].) It the has also law the established that inconvenience circuity compensation (see call of travel does not 333; any to 639), A.L.R. 93 A.L.R. and that inconvenience owner he is on street to over the after the and wishes travel system damage is a in public streets suffered common general public impair with the and does not constitute an Nunan, in Thus, Bigley ment of his easement. 53 Cal. defendant, fence, occupied construction of a public plain in immediately one-half street front of opposite tiff’s on side of the there but street property completely from. The fence shut off one-half the street plaintiff plaintiff’s property. The sued the width front of damages. nuisance, to and for The court defendant abate public one, it that if a nuisance was a held there was bring person a not an action to could abate a that damage, he show to himself or nuisance unless could public distinguished peculiar to him as from that was his public. plaintiff The could damage to the court held that showing facts, declaring: alleged not make such a under street.,has not been plaintiff’s from lot to the “The access impeded, neigh cut his plaintiff off and if immediate through pass bors have more occasion to the street than the public large, degree only, an this is inconvenience injury not an different from that kind sustained immediately public.” narrowing of a street one-half The opposite lot, closing in principle no different from the unimpeded the street one direction access left with the other. Reynolds 1Co., Cal.App.
In etc. Presidio R. R. alleged laying of 1118], complaint P. streetcar that boundary “ob- plaintiff’s property tracks near the has ingress property.” denying structed and from said damages allegation the court is no said: “There the ob- having prevents struction from to and plaintiff access property. from not clearly her . . Such obstruction would . prevent plaintiff getting from lot or off her to the public street.” however,
Where, cuts access obstruction off to the injury an results peculiar that is general different in kind from by the public. that suffered forcefully brought The distinction is Hargro Hodg out don, 89 623, 628 1106], In that case defendant public building alleyway occupied constructed on alley along plaintiff’s the whole line. court enjoining building. an order affirmed the maintenance of the approving pub After the doctrine that the obstruction of highway special injury lic of itself does constitute a abutting property owner, an the court stated: “But has an never been held an individual can not maintain action obstructing which, public abate obstruction while premises from highway, also cuts off access *27 this, private highway. So far it it becomes nuisance. does road, complaint it street or but is, His not that obstructs the reaching also, prevents (See, it.” that it him from Schaufele Strong Sullivan, 180 Cal. Doyle, Cal. P. Ry. Angeles v. Los A.L.R. Williams P. 330].) Co., P. Cal. com Scholle, 657],
In Hitch v. 180 Cal. P. subject certain land plaint alleged plaintiff owned that the the defendant public way to an easement public highway by building maintaining obstructed this it a. fence across plow and threatened to up highway. The court injunction, declaring: denied an “It is well settled that if an obstruction' wrongfully which is erected and main public highway tained constitutes a nuisance which in juriously private person affects a equally in common with public private large, may action not be maintained (Blanc abate the nuisance. v. Klumpke, 156.) It Cal. only private where the free use of aof person by is interfered with such an obstruction that he have private resulting action to abate nuisance therefrom ground . . . there is no an for private person action resulting abate a nuisance from the obstruction of a public highway merely appears it person where subjected personal would be inconvenience the obstruc placed tion or necessity traveling under a much more circuitous route (180 to reach his destination.” Cal. 467, 468, see, also, 2 Wood 470; Nuisances, 853, 645; see. 596, 613; Best., Columb. L. Bev. Torts, seq.) et they
While these nuisance eases directly point, are are enjoin an action to a public for nuisance cannot be main- injury unless an private right. tained it'constitutes to a that a property established must be invaded before compensation under I, is allowed article section 14 California Constitution. The provision constitutional creates property rights; protects no that already those exist. That injuria absque which was damnum adoption before “or damaged” absque injuria. clause is still damnum “The 14) provision (art. I, permits against sec. action state, an which cannot be sued without It is designed, its consent.' give to create action, new causes df a remedy but for a cause of action that would otherwise exist. The state is there- provision fore not liable under this injury absque injuria. damnum If owner would have no cause of action person damage, were a to inflict the he can have no claim for from the state.” (Archer Angeles, Los Cal.2d P. 2d rule, solely is not however, derived from the nuisance Supervisors, cases. Thus in Brown v. Board 82], Supervisors passed San Francisco Board of providing an order the reduction the width of Turk *28 abutting owners 68 feet 7 inches. feet to from Street without made not be improvement could that claimed improvement damage for the providing to sustaining a demurrer In property. their would cause prop- “The declared: the court for certiorari petition their in front of in street abutting has an owner erty which air, and for light right of access his land is the compensation. to rights he is entitled these infringement owner, abutting to the and individual right peculiar This upon right and fro passing to differing from the any public, and enjoys in common with the street, he which ap- right . . . The gives him a action. infringement thereof in however, the reduction pellants not, claim herein do that their any respect in interfere with width of the street will inis to their lots enjoyment light air, or that access Indeed, by degree in view of the fact any impaired. it have the same reduction of the street will proposed city, majority in the such contention width of streets as may damage appellants not . The could be made. . . which of their lands is sustain reason of a diminution value . damage they compensation. to . . which are entitled abutting is not of ‘The owners the streets any or they prevent absolute character that can resist detriment, all with the street their or which interference stay municipality can he asserted to the hand control, regulation, improvement pub- or streets although interest, may appear lic made privileges enjoyed, they which had theretofore and the bene- they existing condition, fits from the derived its changes impaired injury would-be curtailed to their proposed.’ (Reining Ry. Co., York 128 N.Y. v. New etc. 14 L.RA. has been held in closing other a street which states that even entire property give compen- abuts does not to the owner a sation, as he long so there are other streets which thereby access to his land. The mere has inconvenience ex- perienced damage compen- is not a he entitled to (124 274, 280.) sation.” Cal. Angeles, Los McCandless v. involving damages
139], I, a claim for under article section 14, recovery regarded injury was allowed because the was peculiar abutting property. The court declared: illustrating abutting
“Cases
that an
rule
owner
special damages
suffer
peculiar
indepen
himself and
damage
dent
such
as he sustains
common with other
public by
owners and the
reason of
construction
adjacent
railroad tracks in
the street
are
*29
these:
Co.,
O’Connor v. Southern
122
R. R.
681
Pac.
Cal.
688];
Co.,
P.
Smith v. Southern Pac. R. R.
P. Hodgdon, P. Cal. Geur Petaluma, kink v. Cal. P. Rose v. State California, 19 505].) Cal.2d identity The of the tests in the nuisance cases and actions damages under I, forcefully brought article section Rea, out in Brown v. 713], Cal. 171 P. in which the plaintiff sought enjoin to the construction of a railroad a street. sustaining a demurrer complaint to the the court “Generally declared: speaking, public a nuisance does not ground furnish for action private person, a pub but such may lic nuisance upon inflict an peculiar individual such in jury as to entitle him to maintain a separate action for its abatement, or damages to recover therefor. . injury . . The to however, the individual must, different kind and not merely degree general from that public. suffered- (Aram Schallenberger, 449; Bigley Nunan, Cal. 403; Hogan v. Central R. R. Co., Cal. 83 Pacific highway, a un Ordinarily, an obstruction injury is illegal, public nuisance. The authorized right resides right highway, upon to travel however, public generally. may, Such obstruction of land Every nuisance as owner constitute a well. land from his abutting highway right has access This highway highway to his land. and from the highway easement, of access is an obstruction to peculiar which at same time obstructs this easement is injury abutting gives him a cause landowner and complaint because Holding action.” that the was insufficient “right the street allege passage not that the it did between premises” court “These impaired, was declared: plain appear facts not the court alone do make premises tiff’s street and his passage between the degree stated: any later will be in affected.” court that, “We under the con do not overlook the consideration ‘private provision stitutional shall be taken having damaged just use without damages by an first been made’ . . . be recovered abut *30 ting any damages his public for owner use of a street which adjoining or of access and from the his easement to seeking damages street . . after complaint, But the whether . construction, injunction before, the or an must show some injury actual or to of private property threatened plaintiff, and present complaint this the fails do.” (150 171, 174, 175; see, also, Los An Wolff of geles, Cal.App. 862]; City San Mateo v. of Railroad Commission, Cal.2d 1 [68 rights majority opinion private property
Under the new representing millions of pub- of dollars have been out carved highways, expense pub- lic streets and at alone of safety. years of treasury public lic but Of recent growth high- of traffic has necessitated the construction .of ways intersecting expedite with fewer streets to of flow traffic reduce the rate of accidents. and motor vehicle Such through highways of city have been San constructed Angeles Rafael, Parkway from Arroyo Seco Los many Pasadena, contemplated. and the construction of more necessary In such will be either to close the cross eases carry freeway, costly streets or to them under or over the both projects. contemplate subway plans overhead or cross-
ings freeway, necessarily every creating few blocks over the remaining of improvements cul-de-sacs streets. Similar separation grades are in the involved railroads and highways, necessary is usually for it to make a dead end of highway one more streets as raised or lowered cross tracks. present railroad case on the cul-de-sac Sterling integral Street part rearrangement was city necessary streets San Francisco made the construction of the Bay San Francisco-0akland Bridge.
The cost making improvements such prohibitive be rights now that new are for created owners of abut- ting on angles streets would be improve- ments, rights for these must be or ways condemned con- improvements. structed or under over The construction improvements discouraged by is bound to be the multitude arise, negotiation claims that would the costs of with claim- ants or litigation, might and the amounts that claimants only public Such recover. claims met by could be revenues that would otherwise be expended on the development farther improvement highways. of streets and
It must be question remembered that is not whether existing compensation, easements should taken without private rights arbitrarily but whether be created for an should necessitating group chosen persons, tribute. from long standing public rights it exercises public thorough- expeditious interest safe travel . fares. rehearing
Respondents’ January denied petition was rehearing. 17,1944. J., Edmonds, J., Traynor, voted