People Ex Rel. Department of Public Works v. Russell

my prevails in in the above cited cases still dissents involving long in cases contests so will invoked future will this court remains as is now constituted. as my testamentary opinion incompetency In the evidence stronger no in case than it the cases majority I cited, have hereinbefore which the of this held, law, court a matter of insufficient to invalidate cases, wiR involved those and while correct conclusion majority reasoning is reached bar, case at majority arriving at such conclusion is out of har- mony with respect the settled rule with function and power appellate of an court to review the determination an issue of fact a trial court. A. No. 24315. Bank. Mar.

[L. 1957.] Department THE PEOPLE Works, Ap- ex rel. of Public pellant, Respondent. FRED RUSSELL, J. Robert F.

George Hadley, Fisher, Jr., William E. C. Appellant. Carlson Attorney Bourke City (Los Angeles), Arnebergh,

Roger Peyton City Attorney, Moore, Jr., and H. Jones, Assistant City Attorneys, as Amici Curiae Weber, Deputy Weldon L. Appellant. behalf Hodge Respondent. L. Dolle Douglas Edmonds and L. appeals portions from those The plaintiff SHENK, J. upon a verdict, entered award judgment condemnation, taking Parcel 1 ing and severance actual arising out of maps in evidence the con shown upon improvement in the of an struction Angeles is located Los abuts. County. in which the defendant’s maps,

As shown block county road known property is located fronts on a as Firestone by Ringwood and bounded Elmcroft and Ave- Boulevard not abut on His indicated as Lot does nues. known Firestone Boule- highway, those streets. A state also as parallel contiguous county to road in vard, runs the highway east-west Reconstruction the state was direction. provide railway overpass. in order to This undertaken raising grade highway, taking resulted in the of that the of a portion county right-of-way of the for the maintenance support to overpass, closing an embankment the the highway Ringwood provid- to Avenue, access the at state ing highway to for a new access and it re- Elmcroft, quired county proceeding the relocation of the This road. by was commenced the state to obtain an easement for the purpose latter 2 of the across Parcels defendant’s property. proposed county It was to reconstruct the road so provide unimproved park- as to an identical 12-foot width of way adjoining property, an identical 28-foot width of paved complete two-way roadway, gutters, curbs and for traffic, grade vehicular and on the same as theretofore existed. only in proposed improvement difference the was the unimproved parkway elimination of a 12-foot opposite on the property side the road from the defendant’s and the conse- quent right-of-way diminution of the total county width of the no There was

road from 52 feet 40 feet. property county road to via the defendant’s intersecting in either direction. the next unimproved at the time of The defendant’s was for limited in trial. It had been zoned C-l commercial use part of which it had 1950 at the time the subdivision contiguous been accepted. been At that time had to the . required highway However, the subdivider had been state acceptance by as a condition to its of the sub county, adjoining map, to dedicate 52 feet division state county of the road to be for the construction and im roadway proved width, with a 28 feet with curbs and unimproved parkway and a 12-foot sidewalk gutters, required The subdivider area on either side. was also 60-foot easements the construction of dedicate Elmeroft Ringwood pave Avenue, Avenue 36 feet on Elmeroft Ringwood for pave and 40 feet on vehicular and to use, highway right-of-way Ringwood to the state Defendant, line. company who then an officer the subdivision and who acquired participated dedication, in the later underlying fee in the question. He owns road. principally at the trial consisted The evidence the testi- mony expert of two witnesses and Little for Ross the defend- expert and two witnesses Elliott and plain- ant Smith jury and the tiff, premises and a view court of the improvements. of the after the construction taking Little testified that the Witness Parcel which per larger parcel about 5 cent of the constituted owned defendant, not, in his opinion, did reduce the value highest and best use which the remainder of the put. could defendant’s There was some variance four opinions of the witnesses to the fair as market parties parcel of this but the do not dispute value now jury amount of the award made judgment, namely, $3,848.64. appeal This leaves consideration on this question damages resulting the award severance improvement. from the construction theory plaintiff proposed of improve- It the the that the was impair any legally compensable right of ment did the rights enjoyed by defendant; that all of the him in connection ownership property appurtenant of the his were to the not to county highway; road and the state that there had rights of impairment county been no his as an abutter on the access; the view, or that diminution in light, road to air, by unimproved of right-of-way the elimination the width total a the did not constitute im- parkway across road substantial that his of to and from pairment of access that road, damages to question of which the defendant before impairment county of access to might be entitled jury, required to the the court could be submitted was road of that to determine as matter law there had been sub- theory of impairment. stantial It was the the defendant, at compensation outset of the that he was entitled to trial, highway Ringwood for the the state at loss of Avenue raising grade of the of the highway. and because that Pending ruling of the court evidence offered show remaining depreciated property his had been that value improvements by the in the highway. construction state near After deliberation and to the close of the trial the court compensable ruled that these were not of damage items jury instructed the not to reaching consider them in its ver- No dict. claim was asserted as loss air, light the defendant’s or view the improvement county road. Each of the defendant’s witnesses testified their opinion highest and best of the remainder his use changed been from a had retail develop- commercial development. ment to a residential Witness Ross estimated damages the severance caused the reconstruction of the using at $69,373, road as the basis for this estimate the fact front defendant’s too for servicing narrow commercial and that by the total right-of-way reduction width to 40 feet longer potential the road no had of an additional width, he 40 feet considered too narrow for the use the type vehicles of used to property. serve commercial Witness Little estimated the severance $68,034, using as basis for his estimate the erection of the state highway ramp, closing Ringwood Avenue access, inadequacy and the of a 40-foot street to service commercial property. He no made breakdown of these factors in his computation. Two of these were later held the court to non-compensable. When he was asked consider in right-of-way the diminution width in estimating the sever- damages, ance he did not change the amount of estimate. thought when if closing Ringwood Yet asked he that persuade present a buyer reason to Avenue an additional was longer property that the was no commercial but any think property, replied buyer he “I don’t residential Bingwood buy property for if would commercial off.” Avenue was closed throughout

It of was the contention the defendant the trial by question that the loss him not of sustained a access highest changing by of and use but the best of his narrowing right-of-way, original the the width of which by necessary being had been established local authorities as commercially-zoned property for this serving and original underlying owned the The trial width he fee. court question properly county to the treated this access refused to determine as matter of law road. However it that a. impairment right, there had no substantial leav- been jury question to ing this as a of fact. The determination private right jury was that the defendant had a instructed by of reasonable access such county road modes con- appropriate are veyance highway, travel as to the to and adequate to property, road of which was serve his a width adapted the uses which was considering available. find in jury should accordance with this If the definition right substantially had of access not been that the defendant’s to find that instructed the defendant had impaired, it was compensable damage by reason thereof. One of no suffered say the landowner has the jurors whether asked right-of-way for with that the use can be done what whether he could have those 12 feet own strip or did road, belong that land opposite side for county had be reserved curbs sidewalks. to the counsel, colloquy court and he was between informed After a County Angeles of Los dedicated that “the area general improved and used for may be road purposes road pavement, area, which includes sidewalk purposes by improvement ultimate is determined curbs, parkway, which according Angeles need of the Los sur- County of jury $33,499.83 returned a The verdict rounding area.” impairment of the defendant’s the severance county to this road. in and right of access the trial court have urges that should deter- plaintiff presented facts that of law from the there as a matter mined impairment defendant’s no substantial been had that the evidence does disclose road; to this by injury suffered the defendant compensable legally improvement. urges The defendant there on the verdict the court determined that judgment its law, as a matter of sub- substantial supports judgment. stantial evidence proceeding domain of com In an eminent amount I, jury. (Const., art. pensation is to be determined court, All other are to tried and if 14.) issues § special they findings make on those issues are it does not awarding compensation. (People v. implicit in the verdict Ricciardi, 390, cited.) 23 402 P.2d and cases Cal.2d [144 799] if there The verdict should stand is substantial evidence implied finding. support the

An abutter’s easement of access arises as a matter of State, 505]). (Rose v. 19 Cal.2d 713 P.2d It is a law [123 property right enjoyed the abutter as an incident of his separate ownership of and is and distinct from the general public in and street. While right of the to the certain have been set forth in the various which general rules decisions scope right, the nature and of this each case have considered upon right of must be considered its own facts. extending as to a use of the access has been defined egress property by purposes ingress of to his such modes conveyance appropriate of and travel as are (Rose customary manner as is or reasonable. v. and in such 713, 728.) It State, supra, 19 Cal.2d is more extensive than immediately opportunity go into the street in front a mere (Bacich Control, 23 property. of one’s v. Board Cal.2d of beyond 818].) not 343 P.2d However does extend [144 to the next intersection at either end the street (Beckham City upon property abuts. v. Stock which ton, Any Cal.App.2d 296].) 64 P.2d inconveniences 487 [149 may do be suffered after such intersection reached not are inconveniences suffered impair the easement but public. Highway changes him as member of the caus a circuity beyond of travel an inter ing diversion of traffic (People Ricciardi, compensable. v. secting are not street 401-402) the value of non- supra, 390, though 23 even Cal.2d consequence may depreciate as a thereof. abutting property impairment has been In in which substantial those cases paved in width of a law from a reduction found as a matter pre- factual situations were or sidewalk area different State, supra, the elimination In v. 19 Cal.2d sented. Rose subway left a crossing grade and the construction of a 196 two-way

14-foot lane for vehicular traffic and a 3-foot side property. front In City walk in of industrial Eachus v. Angeles, Los 130 492 80 Am.St.Rep. 147], Cal. P. [62 improvement the construction of left strip a street a 10-foot in front of plaintiff’s property. vehicular use In Lane Diego Ry. Co., 109], Elec. im San Cal. an [280 provement plaintiff’s premises was constructed so close parked that a vehicle not of it could be front while a City passed by. Angeles, streetcar McCandless v. Los 139], improvement Cal. was constructed plaintiff’s property may readily feet from the These line. distinguished present parkway from the case where the ad joining property the defendant’s street area for exactly grade vehicular traffic were of the same width and relationship bore the same defendant’s as Any theretofore. inconvenience to the use purpose greater of these no commercial because widths was argu improvement. Much of the defendant’s result stemming ment is devoted to a discussion results improvements highway. in the state His does properly thereon the court ruled that these matters abut compensable. are not purpose determining

For severance underlying it is immaterial whether the defendant owns fee in the road or has an easement therein (Eachus ownership abutting property. v. reason of of Ry. 750, 618 42 Angeles Co., 614, 103 P. Los etc. Cal. [37 149].) right-of-way The had dedicated Am.St.Rep. entire been county par The determination of the purposes. for opposite parkway the should purposes ticular road to which county. the The de put was within the discretion of county required put not the to to fendant could have strip nor could he have that particular road use used the any special purpose of his own inconsistent with full for (Gurnsey right way by public. the v. enjoyment of of Co., 699, 906, 160 705 P. 36 Northern Power Cal. [117 Calif. City Hollywood, Colegrove ; Water Co. v. L.R.A.N.S. 185] ; 1053, P. 13 L.R.A.N.S. 425, 151 429-430 Cal. [90 904] Airways ; 282 P. Hayes Handley, v. 182 Cal. [187 952] County Angeles, Cal.App.2d 106 v. Los Water Co. Cal.App.2d 653, People Henderson, 85 199]; P.2d v. 790 [236 changing travel, conditions of 91].) P.2d With 657 [194 appropriate its county adapt to city or a has to such uses as are within highways from time time 197 enjoyment terms of the dedication and are conducive to the by highway. (Wattson public Eldridge, of the v. 207 236]; Airways County Cal. 314 Water Co. v. Los [278 Angeles, supra, Cal.App.2d 787, 790.) 106 The mere possibility opposite parkway might have been de- traffic, county voted to the use of vehicular should the so speculative too determine, was remote be the basis of (Cf. damages. City Angeles an award of Los v. Geiger, Cal.App.2d 180, 94 192 717].) P.2d [210 proper police power regu In the exercise of its county may traffic, many things lation of a state or do which compensable abutting property to an owner, are such as constructing island, placing permanent a traffic dividing strips deprive an opposite abutter direct access to the side highway, painting double white highway, lines on the or designating one-way (McDonald the entire street as a street. State, Cal.App.2d 793, v. 130 ; People 799 P.2d v. [279 777] Sayig, Cal.App.2d ; 101 890 P.2d State, Holman v. [226 702] Beckham, Cal.App.2d ; City P.2d Stock 448] [217 ton, Cal.App.2d 296].) Amici urge curiae parkway the use of the separation strip as a traffic county proper between the state road is traffic, presents in the control of and as such no valid claim damages. presented Under the factual situation here contention is sustained.

No substantial of ac- defendant’s road is disclosed cess evidence and the jury Any court should have instructed the to that effect. find- implied ing contrary of the court to the from the fact that damages jury question of severance submitted supported is not the evidence. has been said other view what contentions raised

appeal need not be discussed. damages taking judgment awarding for the of Parcel judgment striking is modified therefrom is affirmed. The taking 1. the award severance Parcel judgment affirmed; the defendant As so modified appeal. recover costs on J., Traynor, J., Spence, J., concurred.

Gibson, C. In my prepared SCHAUER, opinion view the J. by in Appeal Pourt and concurred District Justice Court in (reported Doran by Presiding White and Justice Justice correctly adequately discusses and 920) (Cal.App.) 299 P.2d appeal. For the presented on this questions resolves judgment of the trial I affirm the stated would reasons therein court.

McComb, J., concurred. I dissent.

CARTER, J. Appeal, the District was before Court this ease When opinion One, pre- Division an was District, Appellate Second affirming judgment of by Fourt Mr. Justice pared Presiding in concurred Mr. opinion was trial court. This expressed Doran. by Mr. Justice The views White and Justice my concept in of the law on opinion in are accord said opinion my dissenting opinion adopt subject and I said majority opinion herein. from the judgment appeal plaintiff from a in a “This is the defendant was awarded action wherein condemnation $33,499.83. damages in the sum severance acquire brought public an easement for “The action was over described in highway purposes alleges parcel that the to be taken complaint The complaint. prayer damages asks that larger parcel and of a part is a ascertained and assessed. The taking incidental parcel part be taken is of a answer admits taking and the alleges that the construction larger parcel damage. The issue of cause a improvement of the pleadings parties. joined therefore 1‘ unimproved, about feet in taken was parcel to be The in 6 feet to feet and was width length and varied parcel part in area. That was a square feet 5,064 about larger parcel by the defendant. The larger parcel all owned shape with an area of about rectangular generally question The entire square feet. 105,000 fronting abutting upon usage, zoned commercial Boulevard, here county road called Firestone aof north side County County road road. The to as the referred inafter way width, 52 feet in of a dedicated consisted paved allowing for vehicular 28 feet had been the center complete with curbs directions and travel both other County parallel to, road ran on each side. gutters Highway Number Route side, State adjoined on the south Boulevard, hereinafter referred Firestone 174, also known as no connection highway. There was to as the State highway County the State and the road crossover between boundary. Figure along common 1 illustrates the ‘be their position fore' and measurements the defendant’s roadways. relationship Figure to the illustrates and its the position prop measurements of the ‘after’ defendant’s roadways. (See erty relationship post, pages the and its 201.) 200 and County relocation the road was necessitated the

“The highway for widening of the State the construction of a rail- County overpass. reconstruction road re- road strip of a 12-foot on the side sulted elimination south County County In words, road. other road was re- or width, from 52 feet to feet in a reduction of about duced twenty-three (23) per cent, although paved portion addition, paved the road remained same. connection County highway road and the State between the was con- Elmcroft Avenue and the State structed where con- nect. respondent’s that

“The evidence indicated were upon any light, or respect not based loss air view with County thereby resolving road, question the matter to the impairment of access. loss or “Appellant question presented that the sole asserts trial appeal ruling is whether the court erred as a respondent’s matter of easement of access in law that and to County abutting substantially road had not been im- paired. appellant’s It that contention since the uncon- showed that tradicted evidence road had been recon- exactly relationship structed in the same to the land toas roadway, intervening grade, parkway strip, width of being unimproved difference the elimination of an strip County sep- on the other side of 12 foot wide road heavily dividing from a arating and that road traveled State highway, there was no substantial loss of re- spondent’s right of access. question part

“The was a of a subdivision 16767, apparently developed known as Tract Number in about having political 1950. The subdivision control of subdivisions imposed requirements at time certain conditions and subdividers, requirements among such conditions and (the County being here) road width feet in county; that, to the dedicated owners’ ex- width, roadway 28 feet in pense, it be with a that it be gutters provided parkway curbs that a 12 foot provided and sidewalk area be on each side roadway. The map curbed subdivision recorded Apparently, complied October 1950. the subdividers sub- stantially all of the requirements conditions and made political property. subdivisions concerned with Control, “As stated Bacich v. Board Cal.2d pages 349-350 ‘It long recog- : has been 818] nized in this state and elsewhere that an owner abutting upon public property right a street has a appurtenant nature of an in is easement which abutting property private right, his and which is his as dis- tinguished right public. from his as a member of the That right ingress egress as an has been described easement property or, generally, right to and from of access compensation over the street to and from his given impairment must be thereof.’ “Also, People v. Ricciardi, in 390, Cal.2d the court page stated, at P.2d : ‘The courts of this state, [144 799] from time immemorial and cases too numerous to mention, and enforced abutting property have declared owner’s right and convenient to a free use of and high access to the way (Citing on which his abuts. cases.) It was Angeles Ry. in the case of Eachus v. Los declared Co., etc. supra, Am.St.Rep. 103 Cal. P. 149], at p. 617, [37 ingress right egress that this attaches to the lot and fully right as is is a the lot itself destroyed easement is by which that or substantially act im public, paired damage for the benefit is a to the lot itself, meaning of provision the constitutional within under compensation. the owner is entitled to which “ law that “An abutting ‘It is also settled owner has rights highway, public a right two kinds a he which all enjoys citizens, in common with other private and certain ownership arise from his rights contiguous highway, and which are not common public to the abutting An public . . . landowner on generally; a highway right of easement and user in special public has a road for property right purposes, and is access which cannot be away from him damaged or taken without compensation. due ” (Lane Diego Ry. v. [Citing San Elec. Co., 208 cases.] Cal. 109].)’ 29, 33 State, 19 pages Cal.2d

“In Rose 727-728 [123 505], abutting the court said: ‘The owner’s easement of . arises as a matter of law . . and its nature and extent forth in the set numerous have been decisions which have question. Thus, considered established that the ease- peculiar ment of access is matter law to the individual owner, and an unreasonable interference such an ease- necessarily injury injury is an different ment suf- general public. ... It is an fered easement in the upon highway which his land public (Citing cases.) fronts. highway to a use of right purposes extends egress property by to his ingress convey- such modes appropriate travel as are to the ance and such customary (See as is or reasonable. Lewis, manner Eminent ’ (3d ed.), p. 190.) Domain appellant here contends “The of access does to the full width of right-of-way, not extend the dedicated paved portion but thereof and that therefore there respondent’s was no substantial loss duplicate paved portion equal of access since size has provided. been support appellant

“In its contentions cites State, Rose v. City Stockton, supra; Beckham v. Cal.App.2d 487 [149 State, McDonald v. 296]; Cal.App.2d P.2d 793 [279 ; Supervisors, Brown v. Board 124 Cal. 274 777] 82], Bigley Nunan, Cal. 403. distinguishable cited cases are “All of the from the case us. In the Beckham complainant now before ease the owned part no which was taken for construction, and beyond the intersection which was and within the first block question. from the street the construction an under- made and as a result thereof pass was claimants longer could no directly their go from across the intersecting next street and to the downtown area. The court held that mere circuity beyond inconvenience travel an intersecting resulting the construction street of an improvement not furnish a recovery therein do basis for damages by properties landowners whose abut on a street which inter- improvement the street which the sects is constructed; for the that in order landowner recover there must be an infringement possesses some which he in connection property; property right and such is that of reason- fronting able use of the in either direc- next tion to the intersection. Such plaintiffs still had. case, plaintiffs “In McDonald claimed because they formerly passed directly county across' the road, upon property fronted, which their to .and into highway a state lay parallel next to and county with the road. The state county had constructed a wall 11 feet inside of the road thus passage making highway direct to the state impossible, and necessitating county travel on the the next inter- secting highway the state street before could be A entered. complaint to the second demurrer amended was sustained be- pleadings appellants showed that cause did not own abutting highway on the state and did not have appellate stated, direct access thereto. The ‘ court page 797: complain However, appellants do not of the fact that the wall placed original within the surface area upon boundary than its common road rather with the state They highway. claim that their rights abutters’ highway damaged. Thus, have been . . . state the real issue presented appellants, upon is whether or not the the construc- ipso right to highway, acquired tion of the state have facto said portion no erected between state and that barrier (county upon road) properties which their of Plumas Street ’ abutted. Supervisors, supra, 124 274, “Brown Board Cal. v. of narrowing ipso of is not merely holds that the a street facto supervisors of access. The an the board city passed of San Francisco an order de- of the northerly 31 feet of Turk to claring the Street be closed and southerly abutting upon of the vacated. The owner lands the proceedings for a of the side the street instituted review anulling judgment upon of the and a the order action board adopting in in ground the that the board acted excess of jurisdiction. its The court held that the act of the board was discretionary legislative performed act in the of a a exercise legislative body power to them as a and that it intrusted any judicial may exercise of function which re- upon In answer to the viewed certiorari. contention that jurisdiction adopt had no to the order without the board at providing damage for an assessment of the same time that thereby providing payment, for its would be sustained stated, pages 280-281: ‘The the court at which an in the in abutting has street front his land is owner light air, infringement and for an right of access and of compensation. rights ap- these he is entitled to . . . not, however, do claim that the pellants herein reduction any respect street will in the width interfere with their light air, that to enjoyment of or their lots inis damage . any degree impaired. appellants . . The which the by reason of diminution in may sustain value of their they damage are lands is not entitled to com- ’ pensation. (Citing cases.) supra, “Bigley Nunan, v. was not Cal. a condemna- proceeding tion but was action abate a nuisance caused plaintiff’s erection of a fence front of damages. plaintiff’s and for The access from impeded. street had not been cut off or lot The court plaintiff neighbors if held that and his immediate had more through pass public the street than occasion at large, degree only an inconvenience this was jury and was not an in- in kind different from that public; sustained may removed, give damages the nuisance be abated or and to of the value of give account decreased the land would be to damages injury premises for all the sustain, would ever clearly wrong. which would be jurisdictions in other majority of the cases “In a suf- compensation property to an owner premises narrowing of in front of his a street by the fered portion is on the even where the vacated sustained, has been 1255.) (18 860; 49 A.L.R. Am.Jur. street. opposite side 910, 55 Hindman, 128 Okla. 169 P. City Tulsa v. [261 city opens held that where a widens 891], it was A.L.R. motor-truck traffic to its entire for automobile assigned consuming space theretofore thereby all width, abutting roads, or foot it is liable for sidewalks apart set any consequential damages resulting property owners property. such 49 A.L.R. Fry O’Leary, Wash.

“In 13 feet of a street were vacated over 1249], the south op the landowners whose abutted protests of holding resulting damage The court in posite side. ‘We stated, page : think compensable, [252 P.] authority weight the uniform that one under it also clear upon alley, abutting property owner a street iswho sought vacated, which is to any or the whole of be portion right a vested interest to use special and has a egress, ingress light, view, and of the street whole owner, such an com and, any if are suffered air, therefore, It follows that recoverable therefor. pensation is materially view, or access is dimin light, air, appellants’ if they have complaint, are entitled to alleged in the ished, as regularly impaneled upon by jury to deter passed the same City Osceola, 139 Ridgway v. amount thereof. mine the N.W. Iowa 590 974]. [117 “ interest of an that the vested ‘Respondents contend only to the in street extends abutting property owner middle abutting not appellants are that therefore street, vacated, which is across the 13 feet as to property owners logical to its is untenable. Carried position But street. opposite all the street vacate council could conclusion, the street, and still a 30-foot leaving but appellants’ abutting complaint because cause for appellants have no that, most circum- no doubt under there be Yet can owners. would not only 30 feet width on a street stances, wide, for there would be as on one twice as valuable view, means of access. light, air, space half as much to the full interest is vested property owner’s abutting An he is entitled land, in front of his width egress use the whole thereof for ingress, light, air, and any view, and for substantial or material diminution of ’ rights of these he is entitled to damages. recover in “Appellant further contends that the trial court, as a law, matter of must finding make a toas whether the abutter’s rights substantially of access have been impaired, prior to submitting the jury. matter It is true it is within province court, of the trial jury, and not pass upon question whether presented under the facts abutting landowner’s substantially will be impaired. However, this the trial court did it when ruled the admission evidence and in its instructions to the jury. Also, if the court special does not make findings on findings issue implicit its thereon are in the verdict awarding compensation. (People Ricciardi, v. supra, 23 390.) Cal.2d respondent

“Two witnesses testified and each stated opinion it his damage that was that there was a to the remain ing parcel. One witness stated that it was opinion his damage $69,373, such and the other testified that was opinion damage $68,034. his Bach testified that reason of the relocation and construction of highest respondent’s best use property had changed development a retail commercial to a residential de velopment. jury The court and viewed the property, the area improvement. and the constructed judge trial was in a position and, in our opinion, fairly he did exercise discretionary power. His view of the and of the independent construction the state is evidence support finding implicit the determination or in the verdict that an (Neel impairment of access Mannings, existed. v. Inc., 19 647, 654 P.2d 576]; Cal.2d Wheeler Gregg, v. [122 Cal. App.2d City ; Oakland Adams, 37] Cal.App. 614, 947]; 617 Hatton Gregg, v. 4 [174 Cal. App. 537, 540-541 P. 592].) of County ease [88 of Diego Bank America, Cal.App.2d San 135 143, page at of 880], P.2d 149 the court stated as follows: ‘It is the rule [286 in in action, California that a condemnation in absence a showing passion prejudice, finding or jury of a when supported substantial evidence will not be set aside on ’ (Citing appeal. cases.)

“Also, State, supra, pages Rose v. 19 Cal.2d 728- 729, the court said: ‘It is well settled that where there is evi- finding support dence to that substantial and unreasonable

207 with the land-owner’s interference easement of egress ingress has been caused as the result of an street or obstruction say ats, appellate court will not as a

ab matter of law that finding (O’Connor erroneous. such is v. Southern Co., Pac. 688]; 122 681 P. Smith Co., v. Southern Pac. Cal. [55 Am.St.Rep. 868,106 17]; P. Fairchild v. Oakland Cal. [79 Ry. Co., Bay 388].) & 176 Cal. 629 Shore [169 ‘1‘The issues before the trial were, court the ease at bar plaintiffs’ rights of access to Jackson whether substantially Street was unreasonably impaired by the construction subway, so, if the amount damage of the suffered as the interference. result such These matters are the trier of the facts and where the evidence support does not finding of substantial and unreasonable interference should court decide the issue as a matter of law.’ State, Cal.App.2d

“The case Anderson v. 140 [142 88], holds that the support P.2d view alone will a verdict if range testimony. it is within The trial court heard the testimony witnesses, of all received and examined exhibits, all reweighed viewed deny evidence before ing appellant’s motion (See People for new trial. v. Adam son, Cal.App.2d 714, 1020].)

“Appellant further contends there were errors of law prejudicial which were committed to it. It is claimed that testimony of the respondent witness Little for the should have been stricken. The testimony substance witness was that before the construction the remaining prop- erty adapted was to commercial activities and that after the reduction of the street remaining property longer was no commercial; that nowis too narrow to service development a commercial and that the remaining property cannot now be utilized for commercial activities is there- testimony fore less valuable. The proper and the motion properly to strike Substantially denied. the same prevailed testimony situation as to the respondent’s wit- ness Ross.

“It our conclusion ample there was evidence to support judgment prejudicial and there was no error to appellant.”

Respondent’s petition rehearing April for a was denied Carter, J., Schauer, J., 1957. McComb, J., were of the opinion petition granted. that the should be

Case Details

Case Name: People Ex Rel. Department of Public Works v. Russell

Court Name: California Supreme Court

Date Published: Mar 22, 1957

Citation: 309 P.2d 10

Docket Number: L. A. 24315

Court Abbreviation: Cal.