7 P.2d 757 | Cal. Ct. App. | 1932
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *269
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *270 Plaintiff sued to condemn a portion of a tract of land to be used by the state for a highway maintenance station. The cause was tried with a jury, which fixed defendants' damages at $4,000. The clerk entered judgment upon the verdict and thereafter the trial court made findings and entered an interlocutory judgment, which was followed in due time by a final judgment. The defendant Lantz alone has appealed from all three judgments upon typewritten transcripts.
[1] The clerk's entry of a judgment upon the verdict was premature and inadvertent. (Vallejo Northern Ry. Co. v. ReedOrchard Co.,
[2] The attack upon the second judgment, based upon the ground that the court had no power to make it because an appeal from the clerk's judgment was pending, is without merit. The trial court found that the clerk's entry was made while the cause was still reserved for decision by the court. As the judgment entered by the clerk was an idle act the defendant could not oust the court of jurisdiction to enter a proper judgment by taking an appeal from the clerk's entry.
[3] It is argued that the complaint failed to state a cause of action because it did not define a "maintenance *271 station" and because it did not describe the entire parcel which would be affected by the proposed condemnation. If there was any uncertainty as to the meaning of the words "maintenance station" that was a matter for special demurrer. The proceeding was instituted upon the authority of the resolution of the state highway commission, acting under provisions of section 363 (h) of the Political Code, as amended by Statutes of 1927, page 423, section 9. This resolution declared that public interest and necessity required the construction of a "state highway maintenance station" upon the land described, as "public improvement". By the terms of section 363 (h) this resolution was conclusive of the public necessity of the improvement, and as the complaint pleaded the resolution in full it is not subject to general demurrer upon the grounds stated. [4] As to the second objection, the appellant has not cited any authority holding that the complaint must describe other property than that proposed to be condemned. The complaint followed the requirements of section 1244 of the Code of Civil Procedure. If the property described was in fact a portion of a larger tract which would suffer damage from the severance, that is a matter which could not be reached on demurrer to the complaint.
[5] The trial court did not err in denying the motion for a nonsuit. It was not necessary for plaintiff to prove the public necessity. That was covered by the resolution of the board which section 363 (h) of the Political Code, declares shall be conclusive evidence of (1) the public necessity, (2) the need for the particular property, and (3) that the proposed improvement is planned for the greatest public good and the least private injury. (People v. Olsen,
[7] It is suggested that the findings of fact are incomplete; that the court failed to find the amount of land constituting the larger parcel, of which the land condemned was a part. As the jury specially found that there would be no damage to any other lands of defendants and as the trial court adopted this finding, we cannot perceive how appellant *272 was injured by a failure to find as to the extent of other areas.[8] Then it is said that the trial court failed to find that the construction of the station was required by public interest. The findings recite the adoption of the resolution by the highway commission, which is made conclusive evidence of those facts in the absence of fraud, bad faith or abuse of discretion, matters which were not put in issue. No additional finding on these issues could avail appellant anything. The evidence of the resolution was as conclusive upon the trial court as it was upon the defendants, and if the court had specially found on that question the finding must of necessity have been adverse to this appellant.
[9] A general attack is made upon the findings of the court and jury of the amount of damages to which the appellant was entitled. The attack is waged upon the ground that all of respondent's witnesses were incompetent to testify on this subject and that appellant's witnesses were competent and should alone be believed. The competency of witnesses for this purpose is, of course, a question primarily for the trial court to decide. In Spring Valley W.W. v. Drink-house,
[10] Appellant criticises an instruction which advised the jurors that they might exercise their own judgment, acquired through experience and observation, upon the question of land values. The record does not disclose who requested the instruction, but, as the trial court fully instructed the jury as to the consideration it should give to the opinion evidence on land values, and as that is the only question the jury had to decide, the portion of the instruction criticised is not open to objection. These instructions, taken together, are in full accord with the rule of the cases involving opinion evidence. (Haight
v. Vallet,
[11] The trial court properly instructed the jury that it must assume that the state would maintain the station in a proper manner. It is the duty of the officer in charge to do so and the law presumes that an officer will perform his duty.
The criticisms of other instructions do not require consideration, as we are satisfied that the instructions as a whole were fair to appellant and that in the award of damages *274 appellant was given very favorable consideration by the jury, in view of the evidence.
[12] The appellant states that the trial court erred in admitting in evidence a certified copy of the resolution of the highway commission and of a map showing the land sought to be condemned. He merely states the point without argument or citation of authority, hence it does not require consideration.
[13] The objection is made to the ruling denying appellant's proffer in evidence of a copy of a contract to purchase the tract which was executed about three years prior to the commencement of this suit. This contract had no possible bearing upon the question of the value of the land as of the date of the inquiry, but, even so, the appellant was permitted to bring all the details of this transaction before the jury until, by his own efforts, he had destroyed all value of the transaction as any evidence of the present value of the land in controversy.
The judgment is affirmed.
Sturtevant, J., and Spence, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on February 27, 1932, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on March 28, 1932.
