4 P.2d 139 | Cal. | 1931
This is an appeal from a judgment in favor of the defendant in an action for damages to real property.
The plaintiff is the owner of a lot 53.10 feet in width by 145 feet in depth fronting on Sunset Boulevard and opposite Cassil Place, a public street, terminating at Sunset Boulevard at right angles from the north. Sunset Boulevard is an improved public street 100 feet in width having a paved thoroughfare of 60 feet and a strip on each side thereof 20 feet in width from the property line to the curb used for sidewalk and parking. The plaintiff's property is zoned for general business purposes. Pursuant to proceedings regularly had and taken, the defendant city from August 15, 1927, to January, 1928, constructed a pedestrian subway from a point in the 20-foot strip adjacent to and in front of the plaintiff's property to the opposite side of Sunset Boulevard. The southerly approach to the subway is an open cut and stairway approximately twenty feet in length and paralleling the plaintiff's front property line and about seven feet distant therefrom. To protect the open cut and stairway iron railings were constructed around the same and above the surface of the sidewalk. The stairway and railings are opposite the center portion of the plaintiff's property. *69
In addition to the foregoing, it was alleged in the amended complaint that the construction of said pedestrian subway, approach and railings immediately in front of the plaintiff's property constitute a serious obstruction to the free use by the plaintiff of said street and sidewalk for the purpose of affording passage to and from said premises; that said subway, approach and railings greatly diminish the market and rental value of said property and greatly interfere with the free use by the plaintiff of the street in front of her property for the purposes of ingress and egress; that no proceedings have been taken by the city to ascertain the extent of said damages or to render unto the plaintiff just or any compensation therefor; that a demand for such compensation duly made to the city council was rejected.
A general and special demurrer to the amended complaint was interposed by the city and was overruled in one department of the superior court. The city answered and the cause came on for trial before a jury in another department of said court. The city objected to the taking of any evidence on behalf of the plaintiff on the ground that the amended complaint failed to state a cause of action. This objection was overruled and the plaintiff introduced considerable evidence in support of her complaint; whereupon the defendant renewed its objection and presented a motion on the same ground to dismiss the action. After argument the objection was sustained, the motion was granted and the action was dismissed on the ground that the amended complaint failed to state a cause of action. A judgment for the defendant was accordingly entered. The only question presented is whether the amended complaint states a cause of action.
[1] Section 8 of article I of the Constitution of 1849 provided that private property should not be taken for public use without just compensation. Section 14 of article I of the Constitution of 1879 enlarged this protection to the property owner by providing that private property shall not be taken ordamaged for public use without just compensation. This enlargement of the constitutional provision first came before this court for consideration in Reardon v. San Francisco,
A similar situation was involved in Genazzi v. County ofMarin,
In Brown v. Board of Supervisors,
[2] In the case at bar it cannot be questioned that the plaintiff, as an abutting property owner on Sunset Boulevard, possesses not only the right to the use of the street in common with all other members of the public but also a private right or easement for the purposes of ingress and egress to and from her lot which right may not be taken away or destroyed or substantially impaired or interfered with for public purposes without just compensation therefor. [3] Whether the infringement of her right is special and peculiar to the plaintiff's property and has resulted in a substantial impairment of her right, is a question of fact, and we think the complaint is sufficient in alleging not only the special and peculiar nature of the infringement as applied to said property, but also the substantial impairment of that right. At least it may not be said as a matter of law that the plaintiff under her allegations has suffered no damage. The free right of ingress and egress in the case of said business lot or a lot zoned for that purpose, would seem to be a substantial *72 right. As alleged, the plaintiff is cut off from that right to the extent of about one-third of her frontage because of the improvement complained of. We do not mean to express an opinion as to the extent of the damage suffered by her but merely to declare that the infringement of her rights is substantial under the allegations of her complaint. We arrive at this conclusion without intimating, as counsel for the defendant apprehend, that the construction of a lamp-post or electrolier in front of private property would constitute a special and peculiar and substantial impairment of a private right.
It may be assumed and may not be denied that the use to which the city has put this portion of the street for a pedestrian subway for public use is a proper street use, but such assumption, deemed incontrovertible for the purposes of this case, does not answer the requirements of the Constitution. The plaintiff may nevertheless be damaged by reason of such a proper public use to which the street or a portion thereof may be put; just as the raising or the lowering of the grade in front of private property may be a legitimate public improvement, but when the same causes special and peculiar damages to the abutting property owner the Constitution must be obeyed.
The defendant places great reliance upon the case of Hayes v.Handley,
The case of Colegrove W. Co. v. City of Hollywood;
Likewise the case of Montgomery v. Santa Ana W.R. Co.,
Further notice of decisions from other states would not be especially helpful. In states whose Constitutions guarantee compensation for "damages" as well as for "taking", we find a general uniformity of opinion that a substantial impairment of the private right must be compensated for. Where those Constitutions provide for compensation for "taking" only, the damages without a taking are generally held to be not compensable.
We are satisfied that the complaint herein states a cause of action and that the extent of the alleged damages is a question of fact.
The judgment is reversed.
Seawell, J., Preston, J., Langdon, J., Curtis, J., Waste, C.J., and Richards, J., concurred. *74