*1 Dist., Nо. 13242. Oct. Second Div. One. [Civ. 1941.] PEOPLE, etc., By THE Department Through Works, Petitioner, Public v. THE COURT SUPERIOR OF al., Respondents. COUNTY LOS ANGELES et George Hadley,
Holloway Jones, Good, D. Clifford C. Lincoln V. Petitioner. Johnson and Francis J. Carr for Coster, County Counsel, Douglas O’Connor,
J. H. De Deputy County for Re- Counsel, George Francis H. *2 spondents.
DORAN, Petitioner herein to J. seeks a writ of mandate respondents judgment dismissing compel enter a a con- to petitioner proceeding demnation motion of made in provisions pursuant of court below to the of section 1225a Procedure, of Civil which motion was made after Code pro- of petitioner had a notice filed of said ceedings in accordance with the of the said section to. in of the code above referred The notice stated against petitioner one that abandoned the said as parcel therein, parcel Frank of land concerned for which one Lucy appeared Honteleone and Monteleone had as defendants. prior a month The notice of abandonment was filed over for trial of the condemnation the date set action and prior trial judgment of dismissal made motion for was date. petitioner’s opposition motion for dismissal “plea interposed equitable named of
defendants above claim, pe- stated, as therein estoppel” based that complaint in titioner, its condemnation by intention, sought of condemn resolution portion away only property, the defendants’ take ingress rights egress from defend- certain but also ’ ingress egress rights property; that the said ants said operations already greatly impaired by physical had been pos- order by petitioner under an of immediate undertaken proceed- property concerned the condemnation session progress already that, in view of made on ing; and question, rights improvement defendants’ above destroyed. peti- Further, soon be that mentioned improvement said con- propose to abandon the did not tioner original intention, but, resolution of to the in its templated diligently rapidly to the сom- contrary, the motion to dismiss thereof; pletion good faith, not made in but for question parcel experiments with successive vexing defendants purpose litigation petitioner price in order to arrive at pay; dis- judgment desired to and that the motion responsibility im- missal was made order to avoid the full posed upon petitioner.under domain eminent laws made state. Other same were statements to the effect plea. defendants in further contended their said Defendants therein ordinances revоcation of the absence proceedings, intention, or an abandonment of entire petitioner only parcel one to dismiss as land under that of single than ownership different petitioner other lands proceeding; in the said prosecute condemnation equity bound their rules against judgment. case below final The court defendants to petitioner’s where- denied dismissal, motion for upon petitioner present writ application made for a respond- petition herein mandate. their answer Monte- adopt ents the contentions made the defendants leone the court below the motion for dismissal condemnation proceeding.
Insofar pertinent, as here 1255a of the Code *3 may proceed- Civil Procedure states: “Plaintiff abandon the ings any the complaint at filing time after and before the expiration thirty judgment, serving final days after aban- filing defendants a written notice of such and court implied, abandonment, Upon donment. . . or express . such any party, judgment on motion of shall a be entered dismiss- quoted in- ing just proceeding. The section the ...” proceedings in code, governing YII cluded Title of the eminent domain. p. Butler, 49, 444], 46 Pac. at it Pool v. 141 Cal. [74 proceeding “The in eminent domain is an exercise
stated: though does sovereign power state, the of the of the state party. The appear upon record as a the face of the use public sought appropriated to a owner of the land to be price, may agree state voluntarily agent the of the as to with convey person corporation may or who desirе the public use, under the statute it for a but the proceed- adversary there is no element of contract. It is the ing appropriates land to wherein the state the use of the requirement subject only the Constitution public, the public use damaged land that the shall not be taken or paid or just compensation having been first made without 396 (Const.,
into the court for owner. art. sec. But 14.) seeking not, plaintiff to condemn land for a use does condemn, the himself the bringing action to bind to take pay compensatiоn jury, land fixed court or may im- great proposed since it be so as to make the use obtaining right possible, delay or the use the permit acquire purpose another to intended competitive purpose, thus use of other lands same compensation undesirable, make use even if the were his plaintiff in action is reasonable. Hence a such conceded right have and decline take abandon stage being, at what con- land, then or proceedings may enterprise he abandon the demnation Pending I for a take the motion decline to plain- later, trial, pending appeal, new it is clear that deposit pay tiffs bound or assessed were not equally trial; it is the motion clear accept appeal payment, that the defendants refused at they all defeat least had exhausted their resources to until plaintiffs condemnation, during all that time had enterprise pay right to abandon the refuse to compensation by the court.” assessed Co., App. Pac. R. Estate Southеrn R. Co. Reis Cal. p. 218, it is stated: think “We 808, 810], with unnecessary the character of to determine possess plaintiff may in pro which a reference to dismissal final after verdict and before ceedings of this character That he is entitled to abandon condemnation. decree of property and ask dismissal before the ex the claim to the thirty entry days from piration of (supra). Butler” The court Pool v. been determined deciding, assumed, Pacific E. ease without E. the Southern discretion of within the right of dismissal that such granting trial court but held that only, court Plain any discretion. had not abused dismissal days thirty trial dismiss, after within had moved to tiff there *4 fixing compensation dam amount of and the verdict and fixed the and values grounds “that ages, the excessive, and of the case were dismissal jury by the prop claim for the plaintiff the deny Beatty from the order erty.” dissented Justice Chief Supreme stat- Court, in case the hearing of this latter ing
39? ought to be decided, I do not think ing: is not “It controversy in a condemnation held, whole that where the owner is compensation which thе the case is over right unqualified to dismiss plaintiff has entitled, the the subjected he proceeding payment of after the costs court costs heavy expenses addition to the defendant damage he prove the legitimate in the effort to loss sought. the consequence will condemnation sustain unde- case, but it is left This main in the was the cided. ...” Adams, (2d) Metropolitan Water v. 16 Cal. District Court (2d) 618], recently Supreme
676 the Pac. before [107 respondents position posses- state, this that when took the plaintiff of court sion the land taken under order right proceeding, condemnation the contemner’s vested, concurrently own- becomes right money for such payment him sum of er’s of a taking taking words, becomes vested. that the act of other possession respective rights irrevocably fixes the con- landowner, possession temner and the is thus after owner taken of land, contemner becomes vested position of the land. court held that such a could sustained, provide for first, the law because does not possеs- second, payment, absolute act of immediate irrevocably rights parties, because sion does not fix the every possible one of issues condemnation case necessity any public land, whether there to take the owner’s against plaintiff, and should this issue be decided pos- proceeding terminates owner is restored to land; lastly, his session of because expiration any time before the abandon thirty judgment by serving upon days after final defendant filing in court notice such abandonment. written plаintiff by abandoning “While stated: court then subjects costs payment himself of certain filing defendant, expenses incurred the service and ipso proceeding, except terminates notice said facto estopped from those rare instances which contemner itself of the availing of abandonment.” 3 Angeles Respondents City have cited Los Deacon (2d) 165], Co. v. (2d) and Times-Mirror Cal. [46 sup- Court, 547], Superior (2d) 3 Cal. Pac. (2d) *5 port position. of their Insofar as those cases concern the right of abandonment they of a condemnation suit have can application no here, as the abandonment in both considered attempted cases was after the time allowed therefor provisions of 1255a, supra. disputed section It be cannot plaintiff that in the instant case of abandonment filed notice within the time provided by appli- code. As far as the cation of the estoppel concerned, doctrine Times- Mirror and present entirely Deacon cases both a set of facts different from the circumstances of the case. instant changed Times-Mirror actually ease the owner had position as proceedings the result condemnation reliance property. contemner’s doctrine estoppel appear does been to have discussed m the Deacon passing, ease. it that should stated court in the Deacon pointed case the fact that the case out Butler, Pool v. supra, enactment was decided before the of section 1255a. be, reаsoning in may However that quotation given may applied hereinabove from the Pool case to the situation in the instant under the case section only 1255a. Moreover, appear it would change wrought in the situation the enactment of 1255a was that of limiting thirty days after judgment. City Angeles final Los (See
v. Deacon, supra, page 649.) foregoing appear it petitioner,
From
proceeding,
plaintiff
as
the condemnation
was well within
filing
serving and
rights in
notice of
abandonment at the
did,
positive
and that
of a
shоwing
time
absence
very
justified
court
unusual circumstances the
would not be
denying plaintiff’s
judgment
motion for
as
dismissal,
suming that
matter of such dismissal rested in
dis
In this
connection,
cretion of
court.
is difficult to
perceive
existing
of a situation
before
trial of a con
estopped
demnation action wherein the
could be
proceeding.
abandoning
from
plea,
their
opposition
defendants
raised
for
petitioner’s motion
dismissal in the court
estoppel.
grounds
below, have stated
The statements
adoptеd
respondent
defendants
here
made
possible existence
merely reveal
cause
action
real
defendants’
as
the result of the
entirely inde
matter
petitioner. This
operations of
prop
of the real
appropriation
pendent of the
may
the defendants
erty
for which
use,
to a
and one
preju
damages without
independent
institute an
action
Angeles, 214
Los
City
rights.
(McCandless
dice
their
peti
139].)
The contention
(2d)
Cal. 67
against
tioner
condemnation
not abandon
abandoning
entire
аny
parcel
one
without
institution of
project
after the
If,
is without substance.
*6
a
determine that
plaintiff
action,
condemnation
a
should
operations
necessary in
parcel
certain
is not
land
an abandonment
prevent
law
contemplated, there is no
a
right of
proceedings
question;
against the land
affected
is not
plaintiff
to abandon condemnation
may have
question
merely
by
the fact that the
operations.
damage
plaintiff's
suffered
through
Under the
presented,
appeаrs
circumstances
here
good
petitioner’s
cause shown for the denial of
judgment
motion for
dismissal under section 1255a
Moreover,
provisions
Code of Civil Procedure.
of sec
1255a,
supra,
tion
here
are similar to those
583,
provided
any
section
wherein it is
action shall be
dismissed
brought
the court unless such action
trial
years
five
filing thereof,
parties
within
after the
unless the
stipulated
writing
have
to ah extension of time. Section
583,
mandatory upon
in that respect,
been
has
the court.
held
(Andersen
Court,
v. Superiоr
963].)
Under provisions 1255a section it would also appear plaintiff that a in a condemnation judgment absolute to abandon the obtain a action and dismissal, provided, unless, within the time for con some reason, estopped ceivable doing. from so connection, following language in Andersen v. Su Court, perior page pertinent: supra, 100, is grounds “But, equitable conceding that there estoppel to enforcement of of an action the dismissal under . . . the section 583 of the Code of Civil Procedure quеstion to be court under a presented first this mandamus whether facts law, would be one of as to a pleaded trial court constituted passed ground denying It sufficient motion to dismiss. can- a within the discretion not be claimed that is matter arbitrarily the trial court what cir- determine extraneous compliance cumstances will excuse a with the statute.” quotation with applies above from Andersen case equal presented upon force to the situation motion provisions dismissal of condemnation aсtion under the regarding 1255a. section 1255a the dismissal of such are mandatory actions the trial court.
For foregoing reasons, peremptory writ of mandate requiring Superior County Angeles Court Los enter a proceed- dismissing the said condemnation ing as parcel granted. to the in question
York, J., White, J., P. concurred. petition A rehearing 1941, 12, denied November respondent’s petition Supreme for hearing Court 18, was denied Houser, December Carter, 1941. J., and J., hearing. voted for a January 12,
On opinion was filed: following CARTER, J., Dissenting. In myoрinion, respondents’ petition hearing granted for a should be and this ease should background heard and determined court. The this *7 forming basis the decision here that State of an California action in eminent domain commenced against Frank wife, Monteleone and and others to condemn parcels various of right therefrom, land and access to and sought onto the be highway. property The thus to acquired highway purposes. Upon commencement of the state, pursuant I, action the to article of the Con- pos- California, stitution of obtained order for immediate property rights session of the to taken and damaged, possession Thereafter, and took of the same thereunder. proceeded completed state with construction of the highway. Defendants’ involved in that action abuts a Cottage Street, on short street in Angeles, Home Los which Figueroa a hill on end and stopped at one intersected Street approximately right angle on a the other end. There are intersecting Cottage no cross streets Home Street between only points and the means above-mentioned of access to that property abutting to thereon, Figueroa street and plan of The state’s construction set Street. forth in its a using of complaint in the action called for a foundation for portion lot for a of the side of defendants’ improvement Figueroa Street fill, being plan that the higher that 14 feet than require a point its elevation to action, existing. formerly After commencement Figueroa Street changed plan its in that the sides state Cottage would consist crossed Home Street where that street necessity walls, eliminating the perpendicular concrete thus It fill defendants’ lot. resting place the toe of Figueroa fashion, with the proceeded grade Street is closed property is on a street which result that defendants’ along Figueroa Street end, and a hill at a 14-foot wall one right All from defendants’ at the other. access destroyed. Thus, the Figueroa thereby statе Street way project take abandoned or its de- discontinued right damage property. their On access fendants’ the plan accomplish and contrary, proceeded according it accomplish After all this had trans- precise result. did its motion dismiss pired, then filed notice the state To that motion de- defendants. condemnation action as to estoppel, denied pleaded equitable trial court fendants the District Court of In the instant the motion. compelling the trial Appeal granted writ of mandate court grant the motion to dismiss. statutory authority for dismissal condemner section 1225a its in eminent domain is Code action Although Procedure. this section authorizes aban- Civil I “proceedings” condemner, think it donment contemplated applicable should clear that was not already authority of action, has under when the condemner its damaged involved taken or therein. Further- comprehensive “proceedings” sufficiently more, the word improvement include the execution condemner. рroject, has not at. bar state abandoned In the case action, completion. it to but has carried It did not basis of proceed- defendants, therefore dismiss the other as to ings abandoned. are not access, property right, a real defendants’ *8 damaged. as their lot has been taken, a result thereof
been dispute right that. to no about Title that There is and can be reason, logical is passed the state. There of access has compelled be the defendants should just why or otherwise just initiate an action on their own obtain com- behаlf to pensation they apparently which are entitled under guarantee. constitutional suppose Let us that a condemner possession acquired which there were exten- sive improvements by and valuable do- virtue of its eminent main Thereafter, action, action. but before the trial the condemner project commences construction of its and.in the process buildings deep demolishes the and makes excava- tions in the land. It then asks for a of the eminent dismissal principles domain action. Under enunciated the deci- sion of the District Court of Appeal, the dismissal would be permitted. compelled The land owner be commence his action for and assume the burdens incident thereto. He delay obtaining compensa- would suffer tion to which entitled, he necessarily which would occur before the finally adjudicated. matter could He not could recover interest the amount of the award until date judgment, though even posses- the condemner taken had long prior sion deny thereto. This would the property right owner a which this court held he entitled to Metropolitan Adams, (2d) Water District 16 Cal. 676 [107 (2d) 618], Furthermore, might the condemnor not financially pay able amount of the when There is recovered. no difference between that illustration and the case at bar. Here defendants’ has access destroyed. irrevocably been taken and Appeal predicated The decision of the District Court of may premise may that the state not, chooses, or as it damage the owner’s take or the exercise its power domain, eminent sovereign may and thus its dismiss power aid of that when action commenced it determines damage property. general principle As not to take or fallacy entirely application exists in sound. its although Here, the state the instant case. asserted in taking it is damaging to dismiss that or motion defend- speak property, actions with more force than its ants’ by its beyond facts evinced actions show assertion. damaged already taken and defendants’ cavil сontrary. claim the might whatever it It judicial determination logically from the follow state adjudicated dismiss, the factors may' that one of the dis- damaging or state is not missal that the defendants’
403 subsequent ae- in their the owners claim property, and when occurred, the state will damaging has taking that the tion Butler, Pool v. judicata The that issue. case plead res on Court District the 444], relied 141 Cal. Pac. [74 awith not concerned point it is Appeal not in because is damaging prior to taking a or there was fact case where District v. Metropolitan Water In request dismissal. taking of nothing a more than Adams, supra, there existed There was possession by the condemner. in that case.
or dismissal
entirely ig-
Appeal
District Court
decision
App. (2d) 665
People
Joerger, 12 Cal.
v.
nores the case of
page
668:
the rule
(2d) 1269], where
stated
Pac.
[55
possession by plaintiff under
entry into
“It
if
follows that
ownership per-
acts
mentioned,
the order
various
‘taking’,
appellants
a
then
were
by plaintiff constitute
formed
has
Supreme
de-
compensation. Our
Court
entitled
entering
state in
into
very definitely that
act of the
cided
possession
construct
property
term is used
highway
‘taking’
a
as that
was
quoted.
above
of the Constitution
[Em-
phasis
legislature of
at-
In 1897 the
California
added.]
tempted
place
in the
Procedure
an amend-
Code Civil
1254, a
identical to the
to section
law which
almost
ment
14,
adopted
Constitution,
amendment of
I of our
article
constitutionality
challenged
1918.
section 1254
Superior Court,
of Steinhart
The fundamental rules on this are stated in Corpus page Juris at 1078: by
‘‘The abandonment must be [dismissal condemner] good complete project faith and must be a surrender of the so far is condemning as the involved concerned. The party nor experimental assessments, cannot resort to suits it, persisting purpose can avowal of while con- land, demn inquisition judg- and the withdraw from rеsult, ment thereon because dissatisfied with order to procure a methods to seek other smaller valuation property. an pro- desired And where ceedings a contract made with the would violate owner or private rights otherwise attached which preju- have would be abandonment, diced will not be allowed.” Appeal effect of the decision of District Court of denying hearing order this in this case and the court any of permit political therein the state or sub- damage private proрerty public divisions to take or use commencing of the artifice or device of means action property, such domain to condemn obtain an eminent order possession thereof, for immediate construct im- contemplated, then before the provement action is tried compensation and the amount which action, determined, dismiss the property are entitled owner security deposited withdraw amount relegate possession, and obtaining order for owner damages for the tо an action for owner 14 of violation of section damaging of his firmly I am I of California. the Constitution article of by the contemplated opinion procedure never that such enacting the legislature in or the our framers of Constitution by petitioner claimed provisions which it now code under my con- mind such it is permissible, clear susceptible of the statutory are not stitutional and petitioner. interpretation contended denying plain- my judge opinion trial petitioner’s application dismiss the action tiff’s motion to likewise be for writ of mandate should denied. J.,
Houser, concurred. Dist., Div. Two. No. 13116. Second Oct. 1941.] [Civ. C. JACKSON, Appellant, v. MARGARET DUNCAN P. Respondents. al., THOMPSON et