*1 rеmanded with and the cause judgment reversed judgment for defendant the court below to enter directions Board. Welfare Social State J., J., Traynor, J., Schauer, McComb,
Gibson, J.,C. pro tem.,* concurred. Dooling, J. J., and Peters, May 20, 25754. In Bank. A. No. 1960.] [L. Department Works, Re- ex rel. Public THE PEOPLE YON, Administrator, A L. spondent, v. CORNELIUS al., Defendants; (a etc., et YOR-WAY MARKETS Cor- Appellants. poration) al., et * Assigned Chairman of Judicial Council. *3 McLaughlin Casey, & McLaughlin James A. and Law- Casey Appellants.
rence P. George C. William Hosmer Hadley, Peterson and Charles E. Respondent. Spencer, Jr., for County Harold W. Kennedy, (Los Counsel Angeles), and Early, Deputy County A. R. Counsel, as Amici Curiae on be- Respondent. half of Yor-Way PETERS, J. Kennedy Markets appeal and E. W. judgment fixing from a by suffered them as a respondent’s result of power exercise of its of eminent domain. appellants The trial court awarded the sum $5,800, which is parties stipulated the amount that the was the market value property actually plus taken to the re- mainder as a rеsult of the severance. In the stipulation, the appellants reserved the to introduce evidence of addi- damage resulting tional business, loss of customers and goodwill. The trial court held that had suffered no com- pensable damage not stipulation. rejected included It appellants’ proof offer of relating impairment to the claimed of their access to the street which their rejected abutted. The appellants’ cоurt also proof offer of temporary damages be suffered during them proposed construction of the improvement. rulings of the trial court were judgment correct and its *4 should be affirmed. Appellants Kennedy Yor-Way and Markets are lessee and sublessee, respectively, parcel of a city land in the of Azusa. parcel, This “parcel 5,” referred to as is situated on the Commissioner, appointed Judge *Court pro tempore by Presiding Judgе Superior of the Court. Avenue, north northwest corner Azusa which runs and south, Street, First east west, and which runs and and has frontage 200 feet of on Azusa Avenue and 140 feet on First following diagram* general Street. The shows the location of improvement. the and the route and nature of the operate Appellants supermarket adjoining a an and cus- parking question. tomer lot on the The customers’ apparently parking entrance to the market is from thе lot, along northerly portion parcel which is located 5. Auto- parking mobile entrances to the lot are on located Azusa through alley an along Avenue and runs which the west side of parcel 5 intersects strip and with First Street. A 10-foot wide along boundary parcel eastern entire 5 was condemned by respondent pursuant a plan improvement of street and The fair relocation. market value of strip, as well as the diminution of the value the remainder due to the strip, upon by agreed severance of this were parties and dispute. are not involved this But contend that interjected a new street has been parcel between 5 and the originally street it abutted, destroying right their of access to Azusa Avenue customarily traffic which Appellants travels thereon. alleged impairment claim that this gives of access a rise to to additional dam- ages. of the street
Before construction involved on this action traffic Azusa Avenue traveled both north and strip separating no lanes, south. divider the traffic There was traveling Azusa north on Avenue could make a and customers supermarket parking into the When left-hand turn proposed lot. completed change longer possible. will no original is to from its feet Azusa Avenue be widened curb- feet from the Azusa to-curb to 80 curb-to-curb corner of parcel (approximately midway north point First parallel north, First and the next street to between Street proposed connecting where a road will Street) new Second This new road will Azusa with enter Azusa Avenue. connect Avenue, parallel which is to Azusa is the next San Gabriel to the intersecting street west. one-way Avenue is to become southbound San Gabriel connecting new street. South of north of this and San Avenue the of intersection new street Gabriel carry connecting trаffic in directions.
latter will both diagram. following page for *See *5 one-way Azusa will be a street between San Gabriel strip southeasterly A metal
running in direction. divider placed in the the corner to the will be middle Azusa connecting street intersects with Azusa and where boundary northeasterly connecting will be linked to the of this entering Azusa from this street will street so that automobiles only. southerly proceed able to in a direction From this be point south, *6 traffic, although proceed in divided, will both directions. connеcting point
From the of intersection with the street only Avenue will be widened to feet north, Azusa curb-to- one-way street, carrying curb become and will a traffic north. two-way Thus traffic will not exist on Azusa north of this point of intersection.
Traffic can enter Azusa in either direction from First Street. inBut order for automobiles to travel south on Azusa from a (so they parcel north of can parking 5 they enter the lot Avenue) from Azusa must connecting use this new street which can enter either from San Gabriel Avenue or from alley parallels which Azusa to the west. coming Customers from connecting the north must either use this street from San or to Street, Gabriel travel south First east on First and then alley. turn left from First into the traveling Customers must either the south turn left on First (west) alley to the or Second, drive north on Azusa to west on Second to San Gabriel connecting Three-way and then use street. lights traffic Azusa, permitting will be constructed on left turns into First from both directions. There can be no doubt that an have ease right
ment of direct access to Azusa Avenue which cannot be impaired by public agency compensation. a without “The state, courts from time immemorial and in eases too mention, numerous to property have declared and enforced an abutting right owner’s to a free and convenient use of and highway property access to the on which his [Citing abuts. ” (People Ricciardi, v. 23 Cal.2d cases.] 799].) P.2d [144 equally But right it is true that prop- of a erty ingress egress owner to is not absolute. He cannot adjacent demand that original left in be its condi tion all ability time to insure his to continue to enter and property leave his in the same manner as that to which he has transportation become accustomed. Modern requirements ne improvements cessitate continual of streets and relocation of traffic. The owner has no constitutional simply because the streets which his compensation to improved so as affect the traffic flow on property abuts are or of value of the If loss of business streets. such simply prop- It is a risk the noncompensable. results, that is society he lives in modern under erty when owner assumes traffic conditions. modern abutting property compensable right of an owner through adjacent to the to the street and access is direct Bicciardi, (People along passes that street. which public adversely affected, a not supra.) If this basic proper traffic reasonable and agency may enforce enact and although compensation payment of regulations without the may impede with which regulations the convenience such may accomplished, egress thereafter ingress and given circuity to reach destination. of travel necessitate “ regu police power of its proper In exercise may many things county or do traffic, state lation owner, abutting property such an compensable to dividing placing permanent constructing island, a traffic opposite to the deprive an abutter of direct access strips which high lines on the painting double white highway, side of the one-way as a street. designating the entire street way, or Cal.App.2d 793, ; (.McDonald P.2d State, 130 777] [279 ; Holman Cal.App.2d 890 Peoрle Sayig, 101 702] *7 Beckham, City ; v. P.2d State, Cal.App.2d 237 448] v. 97 [217 ” 296].) (People P.2d Cal.App.2d 487 Stockton, [149 10].) The Russell Russell, P.2d 48 Cal.2d 197 [309 v. separation strip parkway a as a traffic the use of ease held that county highway road was noncom and a a state between regulation. pensable traffic appellants rules the are these well-settled Under strip placed compensation because divider to entitled that They direct access to street have
in middle of Azusа. (See that street. traveling in on one direction and to traffic State, supra.) Sayig, supra; Holman v. People particularly v. plan complain the relocation appellants because Nor can in front of from Azusa traffic some southbound will divert right to com property owner has no property. A appellants’ to another or diverted traffic is rerouted pensation because property though value of his substan thoroughfare even People (People Russell, supra; v. tially as a result. diminished State, People Sayig, supra; Holman v. v. Ricciardi, supra; supra.) well-settled application of these attempt
In an to avoid the People Ricciardi, supra, rules cite Long Beach, Blumen- City Cal.App.2d stein distinguishable. clearly In Those eases Ricciardi 347]. that a which in court held results highway rerouting property itself in relation to originally upon merely rather than rerouting abutted it, highway, destroying any traffic from thus direct access to traffic, abutting through compensation. entitles owners to In that the condemnees property case owned corner at the inter- section of Rosemead and Ramona Boulevards. Direct access intersecting strip both boulevards existed. A of land was condemned and Rosemead Boulevard was widened to consist lanes, underpass four two in an and a service lane on each underpass. side of the passed Rosemead Boulevard under in Ramona Boulevard such a manner the condemnees’ property entirely was cut main off stream traffic. only The direct access that remained was to the roads. service Through traffic in either direction could reach the question only by detouring to one the service roads. These through roads could be from the only reached traffic lanes at points considerably tо the north or property. south of this Departing through traffic could reach the lanes either direc- only by traveling along tion first joined road until service it through with the traffic. The factual situation involved City Blumenstein v. Long Beach, supra, was somewhat That similar. case involved freeway the construction of a property outlet between Blumenstein’s Anaheim Street which Blumenstein’s originally had The freeway abutted. new outlet passed directly in front of the proрerty, separating it from (two-way) traffic on Anaheim Street a concrete construc- approximately tion freeway 5 feet wide. Traffic proceeding along the (three one-way outlet lanes of traveling west) merged with that on Anaheim at Street Harbor Avenue, the intersecting street first west property. Blumenstein’s freeway court the new held outlet could not be con- as the emptied sidered addition lanes Anaheim because it (cid:127)its traffic into Anaheim at a prop- west of Blumenstein’s erty while other end of the outlet connected with the *8 freeway, not Anaheim Street. Thus Anaheim had been di- abutting property, from its entitling verted owners thereof compensation. to In of through each these cases traffic to continued travel
226 origi the owner’s had
along the street
which
improvement
nally
But after construction of
abutted.
longer
any through
abutted on
properties
involved no
they
sepa
a
were
trаffic street. As
result
through
carry
not
traffic
a new street which did
from
rated
(cf.
through
State,
McDonald v.
traffic in either direction
Cal.App.2d
777]).
In the case at bar there is
P.2d
[279
parcel 5
Azusa Avenue.
has
no
Azusa
new street between
connected, in
and then
to a new
simply been widened
part,
Through
of traffic.
southbound
facilitate the flow
street
to
abutting
along
parcel
the lanes
5.
pass
traffic will continue
that
this southbound traffic comes
It
is immaterial
connecting
traveling along
rather
than
from the new
connecting
carry
of Azusa. The
street will
the entire distance
through
on
which intends to travel south
Azusa.
all
traffic
along
Through
travel
Azusa without
southbound traffic will
point
connecting
of
interruption from the
of intersection
Bicciardi,
through
direct access to
street and Azusa. Unlike
Blumenstein, all
in one
still exists. Unlike
traffic
direction
directly
passes
through
on Azusa
front
southbound traffic
(carrying through traffic,
connecting street
pаrcel 5; the
of
point
freeway
traffic) merges
at
with Azusa
north
outlet
beyond. Appellants
complain
parcel 5,
cannot
not at a
now travel
through
traffic must
more
southbound
through
long
route so
as direct access
on
circuitous
continues to exist.
traveling
at least one direction
Azusa
proof
in the
Appellants’
below,
offer
court
stipulation
preserved
which
in the
well as the reservation
purported
“concerning
right to
evidence
elements
their
offer
’’
good
involving
business,
will,
customers
loss
attempting
actually
to recover
are
indicates
injury
result from this street
to their business
correctly
that the items
trial
ruled
improvement. The
court
noncompensable.
stipulation
{Oakland
reserved
Co.,
705].)
etc.
227 substantially impaired appellants are not entitled to addi- damages. tional
It if should be mentioned that even were entitled damages impairment their access, to of of these damages apparently stipulated were in the included amount by parties. stipulated $5,800 the The to fair market value of sum of covered “the together improvements Parcel 5 with all damage by thereon and the severance the to remainder reason taking 5 the of Parcel and the improve- construction the ”1 proposed inment the manner ... Appellants also offered to improve show the that ment could in be constructed a manner which be would more convenient for them and which would cause less loss their They suggested business. respondent to the trial court that could, should, opening strip leave an in the divider so that northbound traffic on Azusa could continue to enter the parking directly They lot from suggested Azusa. also that a light traffic should be at the installed crosswalk which is to be parking located near the lot This entrance. evidence would have been irrelevant. of an convenience indi vidual propriety police is not the test regulation. of the aof powers Police public exercised for the welfare the as regulation whole. govern Traffic is a function of ment for the public, benefit of the not for the benefit and to meet the convenience of an individual owner. The Department of promulgated Public Works has a reasonable large-scale plan improvement for streеt to facilitate the flow Appellants of traffic. complain, legally, cannot because preferred would have improvement that the be constructed a different manner. Appellants further trial contend that the court erred in rejecting proof injury their offer of result during period of improvement the construction. The has not yet constructed, been respondent fully but has forth set how improvement the Appellants is to be constructеd. offered to prove by expert testimony that the cannot be by respondent. constructed the time estimated Under re- 1 ' ‘ Although stipulation Taking 5” it refers to the of Parcel is parties referring only portion parcel obvious that were that 5 actually which was condemned. " ’’ The term severance has used both court been impairment injury counsel to refer to access well as to resulting portion property. to the remainder severanсe probable parties It in is meaning intended the term to have this stipulation. However, technically only the term means caused to the remaindei due to actual severance.
228 plan Avenue will proposed Azusa
spondent’s construction days. approximately parcel 5 for up the area of torn open times, is at all to remain lane of southbound One and direct access parcel lot parking lane to on from this prove that construc- Appellants оffered to guaranteed. days take from to in 90 but would could not be done tion plates probably put months, would and that the contractor lot, narrowing so that excavation, the entrances to over *10 possible. from will not be practical purposes Azusa for They access process will this actual of construction contend that they damage for which should them to suffer additional cause compensated. be injury resulting from actual сonstruc
Temporary improvements generally noncomp public is ensable. tion of inconvenience, annoyance or discomfort the use Personal (Heimann injuries. types not actionable of property of are ; City Eachus Angeles, Cal.2d 746 P.2d Los 30 597] [185 of 750, Ry. Co., Am. Angeles Cal. 614 P. 42 etc. 103 v. Los [37 St.Rep. City supra, Cal.App. ; Stockton, 64 Beckham v. 149] of 296].) unduly delay “It would hinder and 487 P.2d 2d [149 public improvements of prevent or the construction even every of inconvenienсe or interference compensable item hold property ownership private real because upon the of attendant necessary machinery, materials, supplies presence of placed adjacent on streets public for the work which have been ’’ City (Heimann Angeles, improvement. Los supra, to the of p. Appellants not entitled to 755.) are 30 Cal.2d at right temporary their of compensation for interferenсe with access, provided unreasonable, is, interference is not such necessary by work. It is often actual construction occasioned provide up streets and inconvenient pavement, narrow to.break abutting during egress property ingress the modes of being repaired improved. or reasonable time streets are Such property temporary interference with the owner’s and of noncompensable. is access dаmages resulting unnecessary It is true that property temporary with the interference and substantial Thus, may compensable. rights property owner’s City supra, 746, 755, Angeles, Los 30 Cal.2d Heimann v. of “unnecessary it to be rule that and substantial was stated property rights or an actual temporary such interference with possession private of though temporary invasion (See also property during is compensable. construction” 986, 328 Superior Court, 319, 192 Cal. P. [219 Jacоbsen 229 1399]; Diego Ry. A.L.R. Lane .v. Co., San Elec. 208 Cal. 109].) would, course, P. This [280 include addi unnecessary tional damage by and substantial caused reason being originally constructed as planned. damages they But such cannot be recovered until have may They occurred. never occur. Until have occurred damages purely speculative, such People and, as was held in Dept, ex rel. Public Works Co., v. Schultz 123 Cal. “ App.2d 925, 117], or emote, speculative, [r] conjectural damage elements of cannot be or submitted to ’’ jury. considered general While the that, rule in condemnation actions, should be fixed once all at the trial, time main rule is not A inflexible. con demnation award is assumption improve based on the that the proposed ment will be carried out as (People Dept, ex rel. Co., Public Works supra, v. Schultz Cal.App.2d p. 934). at When the condemnation action is tried before im provement is constructed, and although substantial temporary rights interference with the possession owner’s or during construction, access occurs owner subsequent maintain a ing action occurring for such dur *11 (People Dept, construction. ex rel. Public Works Co., People supra; Adamson, Schultz Cal.App.2d applied 1020].) As to the instant this means case, if improvement that the result, unnecessary is not proposed, carried out as and, if or as unreasonable interference with appellants’ rights possession they may occurs, or access then bring damages they an action for such after have occurred. damages they But such cannot be recovered before they occurred, have for the that obvious reason never Appellants sought prove improvement occur. that the can not proposed, that, be constructed in and manner time as a result, possible unreasonable will occur. Such speculative to in are too be recoverable this action. course, any improve compensable damages by Of caused proposed necessarily stipulation in ment were as included fixing damages then existed. The has any yet not been or not there be constructed. Whether will appellants’ rights improper further interference with at conjectural. highly If this time is uncertain and unreason during that able does occur constructiоn was interference damages may recovered in a subse- award, included be temporary for such dam- action, cause action quent but no compensable that a it can be ascertained ages arise until can correctly court the trial held injury has occurred. Thus, resulting temporary damages speculative as to evidence pro- speculative, from the equally deviation alleged, an before work plan not be introduced construction posed could proof properly Appellants’ offers of were re- had commenced. by jected the trial court. judgment is affirmed. J., Schauer, White, J., J., and J., Traynor,
Gibson, C. pro tem.,* Dooling, concurred. J. judgment I would reverse McCOMB, I dissent. J. by opinion Ashburn expressed Mr. Justice reasons People Appeal Court him for the District
prepared Rptr. Markets), (Cal.App.) 1 107. Cal. Ayon (Yor-Way rehearing for a petition was denied June Appellants’ opinion petition J., should was of McComb, 1960. granted. *12 *Assigned by Judicial Council. Chairman of