*1 estate, his to the heirs the Baxter misuse information contrary representation to their interests and his of conflict- ing recom- adequately warrant and adverse interests punishment. mended petitioner is therefore be disbarred ordered that filing practice thirty days from the of the law effective opinion. this 4,1942.] F. No. 16040. In Bank. Mar.
[S. MARY al., Respondents V. ROSE et STATE OF CALI Appellants.
FORNIA al., et *4 Carleton, Durkee, Montgomery Prank B. C. R. C. C. Appellants. Robert E. Reed for Chesebro, (Los
Ray City Attorney William Angeles), L. David, City T. Attorney, H. Neal Leon Assistant Arthur City Nordstrom, Deputy City Attorney, W. O’Toole, John J. (San Henry Heidelberg Attorney Francisco), and Albert P. Skelly, Deputies City Hugh Attorney, Bradford, B. City At- torney (Sacramento), City Bowden, Attorney (San Archer Jose), City Attorney (Oakland), Raymond P. Bert Fernoff, Dunne, M. City Attorney (Stockton), Ozias, C. M. At- torney (Fresno), George J. Allen Sandford, Davis and E. as Curiae, Amici Appellants. on behalf of John T. Wentz Respondents. and Booth B. Goodman for Thos. Straub, J. Dunn, W. R. Tarr, Holbrook & Leslie R. Tarr, Hill, Morgan Stanley & Bledsoe, Burrill, S. P. Charles McCarthy, Wright Kenneth Meserve, K. Mumper & Hughes, as Curiae, Respondents. Amici on behalf of
CARTER, appeal judgment J.—Defendants from a plaintiffs in an action for allegedly sustained result of the improvement construction of an in the street fronting plaintiffs’ property.
This is one of a series of similar actions brought against the defendants the owners of property fronting upon Jack- Street, son Hayward the town of in Alameda County, to compensation secure allegedly caused the con- struction subway of a or underpass in the center of Jackson Although Street. the actions were tried separately, and are before this court separate appeals, facts, rights liabilities involved in each are substantially same; there-
fore, the applicable law fully to each will be considered and herein. determined
Plaintiffs are at pertinent and all times to were this action of approximately owners 3.05 fronting acres of land some feet Jackson Hayward. Street in the town of property is devoted to a fruit improved by orchard and is five room residence, windmill, bam, tankhouse and but been zoned property.”' as “industrial
Jackson Street Hayward runs East 14th Street in Mt. Eden highway where it connects with leading to the San bridge. During Mateo toll month December, the defendant, California, acting State of through its De- partment of Works, Public authority and under the Commission, Railroad building awarded a contract for the subway of a crossing grade to eliminate a at Street Jackson and the tracks of the Western Company. Pacific Railroad adjacent Plaintiffs’ property lies way to the said company railroad thereof, on the north side east on the side of Jackson parcel Street. The entire opposite ap- proach subway. plaintiffs’ front of property Jackson subway, Street is feet width, wide. The feet in lo- cated the center of Jackson Street. It descends under the railroad tracks of company depth said to a approximately feet, again grade beyond then ascends said railroad 16% On each subway tracks. side of 14.5 lanes, are “blind” width, feet in tracks, do not cross the but serve property adjacent ingress owners thereto as means egress to and from Jackson Street respective parcels and their of land. complaint alleges
The amended the construction of subway impairment resulted in an plaintiffs’ access consequent depreciation to Jackson Street with a in the mar- ket value of their $5,000. the sum case jury tried judgment court without a and from a plaintiffs, prosecute appeal. defendants this
Defendants maintain that their demurrer to the amended complaint ground should have been sustained on the jurisdiction trial court had no these defendants nor of subject action, of this complaint and that the amended did position not state of action. It is their plaintiffs’ cause but, damaged, has not been if it had been even damaged, plaintiffs cannot remedy have no because the state express consent has consent, be sued without its and no such given. been they suffered
Plaintiffs on the other hand contend that have damage peculiar their in that their individual ingress egress impaired; means of has been thereto they just deprived have thus been their without compensation I, violation of 13 and 14 of article sections California, Constitution of 5th 14th Amendments and the *6 States; to the Constitution and that this cause of the United may 14 of brought of action I, be under said article section the Constitution of California. major questions by ap
Two then presented are this peal: (1) I Is section of article the Constitution of Cali self-executing (2) ? plaintiffs fornia and have herein sus meaning tained a compensable damage within the said con provision? stitutional question
As to the first our must affirma- answer be tive. system government powers
Under our
all
granted by the Constitution of the United States to the fed
government
eral
states,
power
are reserved to the
and the
eminent domain is one
powers.
of those reserved
does not as
a consequence, depend
upon
grant
for
a specific
its existence
in the
Instead,
constitution of a
it
inherent
in the
state.
sovereign
necessity.
upon
state and
the law of
This
founded
power however, may
by
provision,
limited
be
constitutional
provision
and it
been
held that a constitutional
for the
payment
compensation
by
is a limitation aimed
the Con
at
power
domain, limiting
stitution
of eminent
the exer
power
cise of
public
in favor of the individual
owner
property.
(Commonwealth
Plymouth
Co.,
Coal
It is a reading following portion thereof section I of article limitation: such “Eminent Domain. shall Private taken or be damaged public just having for compensation use without to, first paid for, .; been made or pro- into court the owner .. vided, in an brought action in domain eminent state, county, drainage, or a municipal corporation, or a or a irrigation, levee, district, or reclamation the aforesaid state political may subdivision immedi- thereof or district take possession
ate any right way required and nse of for a public use whether the fee thereof or an easement therefor sought be upon first commencing eminent proceedings domain according jurisdiction to law in competent a court of and thereupon giving security way money deposited such as the court in which proceedings pending may such are di- rect, such amounts be determine to reasonably adequate to owner secure of the sought just to be payment compensation immediate taken taking any damage including thereto, incident adjudication sustained reason of there is no necessity taking property, as soon as the same can be according ascertained to law. ...” I, therefore,
Since article section ais restriction placed by upon itself, Constitution the State all of agencies its domain, who their power derive from it of eminent legislature cannot be said that mere failure brought allowing against enact statute suit to be the state disregard entitles the state that limitation. violate logical in provision inference is that constitutional said self-enforcing. tended to be already
In fact I this court has section of article held Clara, self-executing. (Weber County Santa *7 265; 320.) Joaquin County, Cal. Trahern San 59 v. Cal. Shortly adopted after this constitutional enactment was there a 14 question I, arose or an to whether section article legislature effect, in previously act of which had been controlling condemning pur- land the matter of for road in poses. 14, I, in Of said section article this court case of County Clara, supra, Weber v. Santa said: provision prohibitory “The constitutional is in its nature in self-executing; and is it is direct conflict with the Act of 18th, 1874, necessary repeals operation March and contemplates provides pro- same. The Constitution and for a sought ceeding private property all cases where Court is use, public prohibits proceed- to be for other taken ” ing . to that end. 320, Joaquin County, 59 In the case of Trahern v. San 14 I was not it was claimed that section of article self-execut- language ing. appellant contended therein —“as evidently prescribed shall be law” —in said section contem- legislation subject, until plated on the some act
721
pursuance
damages
be assessed
place
taken
no
could
had
however,
court,
decided
provision. The
of the constitutional
authority
case, cited
of the Weber
contrary,
holding
a con-
supra.
is
alone in
quoted
This court
which,
self-executing.
those cases
provision
As to
stitutional
consequential damaging
bar,
injury
like
at
is
the ease
—
1028:
taking,
page
18 Am. Jur. at
it is said in
rather than
. . .
of the land
occupancy
“When there
no actual
is
taking in the
injury
to constitute
is not so severe as
by their Constitu
sense,
which,
constitutional
in the states
is
damaged, it
tions, require
property is
compensation when
be invoked
provision
settled
the constitutional
proceeding. Under
proceeding
eminent domain
other than an
guaranty,
to recover
such a
constitutional
injury has been sustained
consequential
action in
provi
constitutional
in a
is held that the
number
cases. It
self-executing;
if a statute has
is,
sion
that even
remedy
con
from the
providing
enacted
been
works,
struction of
to enforce
public
landowner
entitled
ac
compensation
his
in a common-law
constitutional
621,
County Adler,
290
(Logan
v.
69 Colo.
tion."
[194
City,
holding provision a constitutional such as are self-executing, tion 14 there of our but Constitution Many many authorities are other cases to this effect. of these *8 v. Springs Water State collected in the case of Chick Co. supra. Highway Dep’t., sovereign can- that a state support their contention Perry cites express consent,
not be sued
defendant
without its
States,
United
As further position for their that granted by I, 14, may constitutional article section not be enforced specific legislation providing without the method of enforcing it, Spinney defendant Griffith, has cited 98 Cal. 974], Bailey Goldschmidt, Pac. etc. Iron Co. v. .and App. In these eases actions were 363]. brought XX Constitution, under section article providing for stating various mechanics liens and “the legislature provide, law, speedy shall for the and efficient legislature enforcement such failed liens.” The to enact legislation and the courts held that the constitutional provision whatever, conferred no but the whole remedy contingent upon statutory was enactment. cases These clearly they are different from at are con the one bar cerned with a specifically constitutional section wherein provided legislature provide that the should method right granted. enforcement of the Section 14 I con article tains no Spinney case, supra, such mandate. in the The court correctly self-executing, held that not the statute-was plaintiff legisla comply therein did the terms of the with tive applicable enactment lien and to the enforcement was therefore not entitled to defend his lien. This was decision Bailey case, supra, followed in also held provision except constitutional inoperative supple was by legislative mented and that it action intended to be self-executing. distinguish attempt
Defendants’ of other decisions holding I, states provision constitutional similar to article sec tion 14 self-executing to be ground constitutions of said provision XX, states do not similar to contain article language section of our section- Constitution. The said as follows: *9 manner brought against the such may State be “Suits ’’ by law. be directed as shall such courts sovereign state, a the contention that is defendants’ It article consent; that express sued without its
body, cannot be when determine legislature to empowers the XX, section state; brought the may against the be and how suits general only the Code, 688, section in Political legislature against the permit to suits subject, seen fit statute on the express contract or only are on the actions where state negligence. XX, does section may noted article passing it be “all mandatory and direct appear face to be on its brought in manner. ...” against must be the
suits State section, the fact wording contrary the said On the to devoted portion of the Constitution that it is located in the give subjects” rather to tends “Miscellaneous discussion of permis- impression intended to be that said section suits, legislature specify to what sive, is, to enable the might brought already for, provided other than those be against state, doing, manner for so prescribe and to having jurisdiction thereof. and the courts statutory interpretation to Application of the rules of two not dis provisions constitutional under discussion does self-enforcing article to character of turb our conclusion as I, 14. section Procedure,
As of Civil is declared the Code section of a the intention “In construction statute Certainly the possible.” if legislature pursued, ... be to to nul never be so construed as language of statute should 6 of XX lify legislature. If article the will section per requiring to the enactment a statute be construed as brought right granted in mitting sec to be to secure the suit legisla I, permit the effect would tion article be to nullify ture, by neglect act, the intent its refusal or a result would be incon the framers of Constitution. Such given a reasonable that statutes must be sonant with the rule legis of the carry interpretation, out intent one will than de operative, rather lators and render them valid well as Constitution, as doing, feat In so sections them. reasonably possible, where codes, will harmonized be all order that stand. general provision is con- settled, also, that a is well by one trolled special, being that is the latter treated as an exception to the A specific former. provision relating a par- subject ticular govern will respect subject, against to that as general provision, although latter, standing alone, would enough be broad subject to include the to which the more particular provision relates.
Further interpretation discussion of the I, of article section 14 unnecessary but cannot obvious must that it be regarded self-enforcing order effectuate its evident objects purposes. *10 pointing
After out that Political 688 permits Code section against only suits express state on negli for contract or gence, State, defendants cite G. & E. Co. v. 214 Cal. Pacific 369 Pac. 78], to the [6 effect that section 688 of the Political grants Code as permission it now stands to sue the only upon express state contract; and further cite United States v. 112 Mfg. Co., Great Falls 306, U. S. 645 S. Ct. [5 28 L. Ed. Crescent City etc. v.Co. 848] Wharf Angeles, Los 207 430 Cal. Pac. a to the effect that [278 1028] brought suit such by as the herein an plaintiffs one ac implied contract, tion on on authority of Crescent Angeles, supra, etc. Co. v. Los may not insti be Wharf tuted under Political Code section 688. continue, Defendants maintaining that the case cited last rights granted holds 14 section I article of the Con- any stitution not superior category are to or in different from rights, other that a suit to recover for infringement upon rights, a consequence, said as does not any light suit, stand in other different than class may brought against not without its be the State of California express consent. above, we are familiar with mentioned
While the decisions entirely we are not in accord with the view an action such as with condemnation, the nature of inverse the one concerned, implied strictly a suit which we are herein to are more inclined hold that the constitutional contract. We grants statutory in nature. provision itself a cause of action— However, self-executing it that under a since has been held lie common-law provision, an action will at to constitutional damaged property taken or compensation private recover for necessary it public use, for do find rule on that we a decision case. question in order to reach this
725 in the however, point out that this court do,We wish respect declared that case, merely supra, Wharf Crescent article constitutional under right compensation in which the category superior 14 to or in a different I, section is not exempt from right is not rights is that such a other case said statutory regulations enactments. or reasonable of limitations. regulation statute That a view. constitu- entirely in with are accord We regulations right subject rules may to reasonable tional be A elementary. or thereof is protection enforcement Byram, Chesney v. court the case decision of this recent the Cres- (2d) 1106], which cites (2d) 460 Pac. Cal. by a right granted constitu- case, cent Wharf held that regulation and subject reasonable provision may tional be same time legislature and at the control the state self-executing. provision may be noted, however,
It will that in neither of said cases did be lack any way legislation or a imply state away taken denied might thereof a or constitutional elementary altogether, legislature it likewise deny by statutory abrogate enactment granted by Ames, 75; Wil Potter v. Cal. the Constitution. 750]; Engebretsen, cox Sievers Pac. Cal. Root, App. And follows 925]. logical right constitutionally granted cannot conclusion that a *11 away legislature by be taken the of the to act. failure Fletcher, As stated in the case v. Okla. of State question were 595], Pac. the provisions constitutional any sovereign not but protect way state, enacted the to specifically indi- protect preserve were to the enacted sovereign. rights Certainly, vidual subjects the the itself, the the framers of provision absence in the section grant the the Constitution did intend to a which not legislature by neglect proper its to remedial refusal or enact machinery away deny. might therefor take or attempted distinguish against
Defendant to suits agencies against itself, of the the state from suits state contend ing they admittedly though may against that maintained the be brought former, they against be latter its cannot without the express sovereign its nature. consent because of argument same was advanced ease Chick
This Department, and, Highway supra, Water v. State Spring Co. believe, ably we opinion in the therein, answered as follows: ‘‘No cities, valid distinction can be counties, drawn between political and other highway. subdivisions . . . and the state agencies . All . . are state, and all im- derive their munity from source, state, the same upon ground agencies that, being state, they in effect are the state Counties, itself. political cities and other subdivisions are held they liable where take not property, grou-nd they by sued, are authorized statute to be but because of provision requiring compensation constitutional to be made taking. for protection This to afforded the humblest States, citizen the Constitutions of the state and the United government and neither through itself can or statute or any agency compensation. paying take without Im- munity instance, from suit cannot avail in this and, no if exists, liability exists, statute provision still because as this self-executing. the Constitutions are say “To hold otherwise would be to the Constitution gives legislature may deny by itself fail- ing refusing remedy. or provide Such a construction provision would indeed make the constitutional a hollow mock- ery rights safeguard instead of for of citizens. applied immunity the doctrine of
“No court has ever bar, they, suit to like one nor can so eases at do absolutely I, would article provision annul the section of the Constitution.” urged
It plaintiffs inasmuch defendants that as enjoin this state can either sue cases such (Wilcox supra; Rockridge Engebretsen, Place this Co. Oakland, plaintiffs App. 64]), are entirely remedy. without a out, many pointed however, must that in eases be of con-
sequential remedy injunction be alone would comparable remedy prior to no all—for to the construction at improvement injury it be which causes apparent result, or if it will dam- obvious age result, may impossible will ascertain the extent thereof. proceed question
We next to consideration of the whether plaintiffs compensable damage or not sustained a have within *12 14 meaning I, article section of the Constitution. fronting property upon or That the owner of street high-
727
private easements
thereto certain
appurtenant
has as
way
distinguished
adjacent
to the
in front of or
street
lot—
and
part
are
therein —which
public
from the
easements
of the
private
and
portion
his
are the
fully
open
question.
itself,
lot
is
as
as the
lot owner
v.
in Brown
right
described
is
The nature
this
82],
Pac.
280
Supervisors,
page
274 at
124 Cal.
[57
Board of
“
in the street
abutting owner has
an
as: The
which
air,
light and
right
and of
of access
in front of his land is the
com
rights he is entitled to
an
of these
infringement
and for
individual to the abut
pensation.
right
peculiar
This
and
differing
right
passing
and fro
ting owner,
from
enjoys
public,
in common with
street, which he
(Dillon
any infringement
gives
right of
him a
action.
thereof
An
712.) In Eachus v. Los
Municipal Corporations,
sec.
geles
Am.
Ry. Co.,
750,
Pac.
42
El.
matter and its ex nature and tent have been set forth in the numerous decisions which have Thus, question. considered established that the ease peculiar ment of access is a matter of law the individual owner, an unreasonable interference with ease such an injury necessarily is an injury ment different suf general (Brown Board, 280.) public. supra, fered p. public highway upon It is easement in the land which his
728 (Eachus Angeles, Ry. Co., supra, 617; fronts. etc. p. v. Los Cushing-Wetmore 70, 152 122 Gray, Co. Pac. Cal. [92 125 Rep. 47]; Diego Ry. Co., Am. St. supra, Lane v. San Elec. 33; p. right Angeles, supra.) McCandless Los of extends to a highway purposes ingress use of the and of egress to property by conveyance his of travel modes and as are appropriate highway to the and such manner as is customary (See, Lewis, (3d or reasonable. Domain Eminent ed.), p. 190.) application of bar that rule to case at means plaintiffs, abutting as owners on Jackson Street, possess only right as a matter law not the use of the street in public, common with other members of the but private right also a purposes ingress or easement for egress and lot, right may to and from their away destroyed substantially taken impaired or inter or or public purposes just compensation fered with for without therefor.
Defendants contend that this should hold court as mat ter of plaintiffs’ law that there was with no interference ease right ingress ment of or egress ease, and access this finding also the evidence does sustain a of such inter ference. The former theory contention is based plaintiffs’ merely easement entitles them to cross from their own property onto highway the street or on which it abuts. is also claimed defendants circuity that whatever merely travel is caused thereafter an inconvenience suffered after reaching highway. the street or These contentions can not be sustained as the trial court found the case bar at plaintiffs’ easement of ingress access or egress substantially impaired by the construction of the subway, finding amply supported and this as will be shown by the evidence hereinafter set forth.
It is well settled that where there is evidence to support finding that substantial and unreasonable interference with the ingress landowner’s easement or access egress caused has been as the result an obstruction highway abuts, street which his property appel say late will not as matter finding of law that such (O’Connor v. Southern Co., erroneous. R. R. 122 Cal. Pacific 688]; Pac. Smith v. Co., Southern R. R. Pacific 868,106 Rep. 17]; Pac. Am. St. Fairchild v. Oak Bay Ry. Co., land & Shore Cal. 629 388].) were, at bar in the case trial court The issues before sub- Street was to Jackson right of access plaintiffs’ whether unreasonably impaired the construction stantially and suffered subway, if amount so, trier for the matters are result of such interference. These support only does not evidence of the facts and where the should interference finding and unreasonable of substantial of law. as a matter the court decide the issue finding support There is sufficient evidence ease. witness present unreasonable interference One 3.6 lane traffic and the for vehicular testified foot *14 the supplying of capable pedestrians foot for was lane prop- of industrial necessary ingress type for this egress and non-accessibility the erty, and because of the it construction that after the put could not be uses some the spoke Other of put could been to before. witnesses have the difficulty gaining plaintiffs’ property under access to of examined judge himself present circumstances, and the trial provided too premises. the was the lane was found that traversing if pass each other for vehicles to narrow two of opposite directions. In the face this evidence thereon judge property, the view of the fact the trial examined finding unsup- it cannot be the of interference said that by ported the evidence. absque injuria urge the of damnum
Defendants doctrine merely legal (damage injury) that doctrine means without but may damages remedy be be person that a suffer and without by possessed legal right right cause no or law established person causing damage invaded, the him, been the duty doing act to refrain from owes no known the law damage. application That has no however causing the rule right, suffering damage has a person where the case, duty imposed right in this and the access causing the to refrain person on the Constitution causing payment compensation. the same without law, question right right being fixed whether such violated, injured, duty is one fact. has been and such distinguish case, attempt Defendants McCandless city property was main asserting that the McCandless zone, thoroughfare, plaintiffs’ prop in a commercial whereas erty is on the outskirts of a small town and used agricultural purposes. Defendants further and residential
compare the public improvements constructed, claiming that legal distinction exists namely, between the two eases, in the McCandless right case the interference with the in- gress and egress arose out difficulty of the fact that there was in getting to and from street, said public into the whereas case at bar inconvenience arises after the public street is purported reached. These distinctions are not convincing. rights abutting of an owner to access to the street are the same whether his is situated on a street large city business district of a or in resi- dential district of a small town. The extent might interference therewith different, right but the access to the street would be the same. It was for interference with access for which were awarded both in the McCandless case the case extent at bar. The of the may interference different, have been but the interfer- ence with was the basis cause of action in both cases.
Defendants plaintiffs contend that even if were dam aged, the damaging occurred as po the result of the exercise power lice absque injuria. is damnum This contention is wholly'without merit as application there is no basis for the police power doctrine the factual situation this case.
Generally, be said that police power operates in the regulation, field of except possibly some cases emer- gency conflagration such as private property or flood when *15 may temporarily be damaged or pre- used or even destroyed to vent loss of protect life or remaining to the property of an locality. entire obviously There is no in- regulation element of volved bar, suggestion the case at anything and no of in the emergency. nature of plaintiffs’ property here involved public was the result a improvement of con- by structed the in the power state exercise of its of eminent domain. seeming
While it is true that protection against the absolute taking the damaging private property or public for use provided for section 14 I of article of our Constitution qualified by police power the in the area in which such power operates, it police power should be that the obvious doc- trine taking damaging cannot be invoked in the private or property a public improvement the construction of where
731
destroy
in effect
otherwise would
To hold
emergency exists.
no
the
against
guaranteed by our Constitution
protection
with
public
a
use
damaging
private
for
taking
or
Dist. No.
(Gray
Reclamation
compensation.
out
Mahon,
Pennsylvania
1024];
Co.
Coal
Pac.
Cal.
322].)
158, 67 L. Ed.
S. Ct.
U. S.
that
very strongly upon
held
the cases which have
Relying
crossing by
closing
the railroad commission is
of a street
absque injuria
nonabutting property owners,
as to
damnum
certainly
plaintiffs
complain
that
maintain
cannot
defendants
main
they
a
lane
must travel
narrow side
to reach the
because
if
portion
they
traveled
of the street when
could not recover
entirely.
were closed
street
recovery
Briefly,
may observe that
has
we
been denied in
upon
injury
ground
those cases
is one suffered
special
public,
peculiar
common with
is
to the
particular property involved,
and the difference in
degree
upon
is one
not of kind depending
proximity
crossing. Compensation
owner’s
closed
ground
also
been refused on
the landowner’s ease-
impaired,
ment
access
not in
is
fact
convenient and
ingress
egress
afforded, although
reasonable means of
quickest
thoroughfares.
not the
route to
and closest
traveled
We
a growing
have observed also that
number
decisions
recovery
damages
denying
nonabutting
prop-
owners of
erty
prompted by the
on closed streets are
economic factors
every
great
Since
owner
distance
involved.
closing
somewhat
therefrom is
inconvenienced
stop awarding damages
street,
question
of where to
ascertain,
payment
but the
only
difficult
great burden
every
place
of this character would
case
closings are ordered.
public whenever such
not con-
determining what does and what does
cases
.The
closed
compensable damage when a street
ordered
stitute a
confusion,
not be
and this decision
will
are
considerable
cited
of the authorities
lengthy consideration
benefited
contend that
Defendants
proposition.
defendants on this
Com.,
v. Railroad
Mateo
San
case
closing
conclusively (2d) 713],
decides
any injury
power
police
grade crossing
of a
is under the
injuria.
absque
is damum
resulting therefrom
contrary to the
in the
facts
therein
absence
stated
directly
*16
plaintiffs’
that none
would assume
abutted on the area to
private
and that the
closed,
property
in question
contiguous
was
to
county
either
or
highways
state
public
connected by
crossings. The court then
that the
held
of abutting
right
nature
owner’s
“an
in
easement
fronting upon
street
lot,
his
ingress
for the
of
purposes
egress,”
concluded
no such
been taken
had
away in the case before it.
In
Realty
Arcadia
v.Co.
St. Louis,
(1930) S. W. 995], the court said: if
“But it be plaintiffs’ assumed that properties will be stripped potential uses and their thereby lessened, value streets on which properties are located will become cul de sacs plaintiffs as claim ... all as a result of the street vacations in question, plaintiffs still will reason injury special peculiar thereof suffer or to them within meaning rule long state. established this order property injury special a owner to sustain an or peculiar him on street, account vacation of a his property portion, or part some of it must abut on the vacated or deprive else the vacation must him of access reasonable general system streets.”
We here called are not a prop- determine whether erty damages in owner recover case where his situated on street created into a cul de sac as the result closing the street on either side his with- interfering out with his the street on which access to abuts, his as this is not such a case. regard decision to holding
Our case, McCandless supra, controlling respect compensable as with to the nature damage herein, plaintiffs’ makes it unnecessary for us to consider contention. The this effect of McCandless deci- damage resulting sion was to that a determine from factual with which concerned, situation similar to that we are here emphasized result compensable. was the decision This Appeal case, the McCandless of the District Court (2d) 545], hearing App. (2d) 407 ease instruction was Said held by this court denied. the McCandless any taking damaging the effect that power and therefore police done under property was earlier decision properly refused. compensable, being authoritative was cited this court same case point. this several case, owners
In the instant who claim *17 subway impaired by their is the access construction in did suffer property fronts, the on which their street That of access. property right, their the in ample evidence question been with decided as a of fact support thereof.
The McKelvey, (2d) case Powell 56 Idaho 291 Pac. [53 626], point is not in for the the reason that Idaho Constitution grant does compensation not for a “damaging” as well as “taking” private property. Furthermore, the sidelanes not said ease were blind and as a matter of fact not were held with Ralph interfere the lot al. owner’s access. et Hazen al., (2d) App. et 93 68 D. 55], Fed. C. is not I, decided under provision a constitutional such as article sec 14 and, therefore, tion is applicable likewise not here. findings
We have examined the the trial court and do they find that not contain inconsistencies or con irreconcilable any flicts on material issues. Defendants contend that the trial computing court plaintiffs’ erred the amount of frontage on the basis of a 120 foot on Jackson Street frontage only when said was in fact feet as indicated agreed maps evidence, maps upon parties were the maps to be accurate. to one of said reveals Reference that the frontage is be 118 “plus said recorded thereon to feet addition, In themselves, answer, minus.” defendants in their frontage plaintiffs’ property stated the measured “not ’ ’ support more than feet. Since there is some evidence to finding court, discrepancy the trial if said and since such exist, did it is so infinitesimal as to come within the rule of minimus, de we do feel that the interference of this court required. finding that the of the trial complain
Defendants also damaged damage, namely, court as to was — deep, re per foot, extent of front feet and that the $35 the sup damaged $200 mainder had been sum the —was ported by evidence for the reason all of the valuation testimony was based on full depth and not basis of at a depth subdivision of 125 feet. There is little merit in this contention. judge That the trial opinion is not bound of the witnesses on market value province well settled. of such testimony is only to aid arriving the court at a (10 conclusion. Cal. 972.) Jur. Furthermore, in the instant case the trial judge visited premises, independent and the information obtained “is so determining evidence that can be consideration in taken into issue of Oak (Gibson Properties the case.” Co. v. land, 942], (an eminent (2d) (2d) 291, Pac. Highway domain Dist. case), cited.) Joint cases No. 9 App. 743 Company, v. Ocean 128 Cal. R. Shore R. premises, but 413], not even view did obliged to it was held therein court was not that “The trial blindly value, market accept witness on estimate of fact, and properly of the ultimate made its own determination weighed aided the testimony of various witnesses light of all of court.” the evidence before plaintiffs’ admittedly facts are zoned as industrial property testimony as to its value as received; premises the trial court viewed the and reached *18 its strip own conclusion as to the value of foot front of the property thereof; and portion the back and the total amount damage of scope testimony the awarded was within the of the (Joint Highway of the Dist. No. 9 valuation witnesses. 762; p. Ocean Company, supra, Shore R. R. Stockton of Ellingwood, 228].) In App. 708, 96 Cal. view [275 finding of trial say these facts we the the court cannot that supported was not evidence. the prejudicial Defendants contend that error was com- mitted the trial court in the evidence, admission of the denial of its motion evidence, to strike certain and that con- given by sideration was fixing the in trial court the amount of recovery damage elements are compensable. Specifically, complained it is that some of the valuation wit- nesses arriving and the in at the amount of the suffered, considered as an element thereof the diversion of traffic fronting plaintiffs’ property; is, from the street damage improvement that one of the the was elements in the street in of traffic thereon caused decrease the flow plaintiffs’ property. front of In this connection record following. Woodward, reveals the Plaintiffs’ valuation witness testifying damaged, property after to the amount testified cross-examination: as follows on
“Q. You state here that this damaged has been you have the amount testified reason of decrease utility property. Now, just explain to me what the utility from? A. utility decrease of comes The decrease in
73S taking thoroughfare off a 66 from foot comes it, well to sidewalks of feet lines of traffic as as with four putting for vehicular it on lane feet wide width and pedestrians. Thai is not a traffic, 3.6 feet wide for and front- in- age capable supporting industry, any large that is an capable supplying dustry, a width street that is and not property. necessary ingress egress such a from away alleyway, again it takes nothing then more than from public going to major portion traffic Q. taking away the Ha/yward. And Mt. Eden from you? you damage, to the do traffic think would contribute Q. part of it certainly you A. I do. much do think that How damage? A. I your say could not would contribute Q. considerable, it? cents. wouldn’t dollars and It would Q. think a 3 be, yes. A. You foot sidewalk would It would certainly impossible I A. do. It would be effect too? sidewalk let people for two to walk abreast foot street, lane, anybody pass stepping out in so without Q. Surely. ? speak. That contributes to the here A. Q. go by fact that traffic won’t there contributes well? contributes, you A. then the fact that these lanes that That put only way lanes and two could have there are one trucks Q. pass. your You have not been to decide own able Woodward, taking away of traffic mind, Mr. how much property? this in front would simply I considered of the elements entered into A. all I my lump mind at sum what believed and arrived I your please, Honor would like damage to be. Mr. Reed. If testimony on the he basis that to strike out Mr. Woodward’s compensable. The cases which are not considered elements *19 right holding property owner has to uniform in that no are compensable is not item pass have traffic his door and that testimony upon that damage, Woodward’s is based of and Mr. weight testimony, goes of the all to the basis. The Court. It is in so far as (Argument.) I The Court. That believe. stipulate that Mr. We will is concerned. Wentz. traffic only of part, that was one go He said The Court. out. go Reed. out. Mr. testimony stipulated to many things, so the stipulate that Honor, I want to moment, your don’t Just a brought on cross- it of witness may go now. I out out objection overruled. stand Court. Let the examination. The added.) fixed the Woodward right (Emphasis ahead.” Go witness, An- $8,040. to Plaintiffs’ at appear from drade, $6,860. fixed It does at as diversion of traffic record that he considered the testimony approach- damage. his only part element of The of ing subject was as follows:
“It question- was a accessibility By the property. accessibility, I did ability not mean the high- traffic on the way get in front park and there and do get away again. business and I being mean deprived of one of the main highways, by putting and an alleyway, a blind alleyway at that.” (Emphasis added.) is obvious that when he deprivation referred to the “of high- one of the main ways” referring he was impairment to the access, rather than traffic, right the diversion of being of access over highway and on the improvement. as it existed before the Leidig placed Plaintiffs’ damages $6,200; witness at as far appears from the record he did not take into consider- ation damage. the diversion of as an traffic element of trial property. findings viewed the of the court respect with to the were as follows: “that since said change grade alley and said construction of said and side- walk, plaintiffs’ egress easement and from prop- said erty ingress said and from Jackson Street have substantially damaged impaired this, been and plain- longer Street; tiffs no have free access to and from Jackson impossible plaintiffs for to have access to Jackson Street, by proceeding upon alley except north said narrow entering termination thereof Jackson Street coming through traffic in the same direction. lane That said through underpass alley too narrow said two vehi- traversing thereon in opposite cles if directions.” to use plaintiffs’ of easement in and “That these Jack- egress plaintiffs’ property ingress son Street substantially impaired by plaintiffs’ property has been onto grade hereinabove referred to and change construc- alley way hereinabove referred sidewalk to. tion said depreciated value reason plaintiffs’ That per foot; extent front $40.00 said real thereof to hereof, chang- IV paragraph since the property described described, grade hereinabove and since the con- ing of said alley described, hereinabove sidewalk struction said per foot; $35.00 front for 120 value not in excess 125 feet deep, Street and and the frontage Jackson feet *20 plaintiffs’ damaged remainder property been $200.00. has That property said is not worth in excess of the value of forty-two ($42.00) dollars; hundred and plain- no/100 tiffs damaged, by change grade, have been- con- said the subway struction the manner in which it was con- structed, by sidewalk, alley said construction of said all deprive plaintiffs ingress to or reasonable egress from their five property, said the sum of thousand ' ($5000.00).” dollars damage by seen, plaintiffs is, suffered have as we interference with their traffic of access. diversion of is not proper computing element to be those considered damages inasmuch no property landowuer or past continuation flow his maintenance of traffic property. throughout country Courts are in substantial agreement damages this, as to the measure cases such as establishing but there is a wide variance the manner of damage. Although well-nigh amount of impossible it is conflicting reconcile decisions, these believed that cer tain principles can be deduced therefrom which will serve to clarify applicable private rules in this state. prop Where erty public use, universally is taken for a agreed it is compensation required is to be measured the market value of the property (2 Lewis, ed.], taken. Eminent Domain [3d sec. 685, p. 1175; 1 Nichols, Eminent Domain ed.], sec. [2d 217, p. 658; 3 Joyce, Damages, 2184, p. 2238.) see. Where private property is public taken for a use damage results remaining property landowner, compensation of the damage for such must be awarded which is measured diminution in value of property (2 Lewis, which remains. 694, supra, p. 1200; Nichols, see. supra, 236, 721; p. see. 3 Joyce, supra, 2186, p. 2242, seq.) sec. et If the re state is quired to compensation damage make private resulting from public use, actually where no taken, generally measure of applied is also diminution in public value caused (2 Nichols, supra, 822.) use. 309, p. sec. This is so under the provisions various requiring compensation whether they (2 751, are Lewis, supra, p. 1337) constitutional see. statutory (1 618.) in nature. Lewis, supra, sec. p. necessary
Whenever it becomes to estimate the amount of upon private property inflicted for the benefit of the public, taking whether or not there is in con
junction
damage,
danger
with the
there is a
that the decline
in market value
be attributable to
other
those
causes
than
for which the landowner
*21
entitled
is
to recover. Where there
taking
is a
private
property, however,
damage
to
nearly
remainder
always
Thus,
is
taking.
attributed
to
courts
frequently
of other states have
said that the amount
damage,
is,
depreciation
remainder,
in
value of
any
be
testimony relating
factor,
established
to
even
though noncompensable
itself,
which
make
prop
would
erty
eyes
less
in the
prospective purchaser.
desirable
of a
(Barnes
Commonwealth,
v.
(2d)
305
339
Mass.
N. E.
[25
737]; Mississippi
Highway
Hillman,
State
Com. v.
189 Miss.
850
565]; Texas-Empire Pipe
Stewart,
So.
Line
v.Co.
[198
331
525
283];
Mo.
S. W.
Louisville
R.
etc.
R. Co.
[55
Burnam,
Ky.
391];
v.
214
736
S. W.
Ohio Public Service
[284
Ohio,
34
532
Dehring,
App.
448]; Regina
Co. v.
N. E.
[172
Co.,
36];
Nixon,
v. Monroe
should he his depreciation based the total of the value remaining property though depreciation even was caused primarily by admittedly noncompensable element dam- age, is, however, diversion said, of traffic. The while ordinarily diminution the test of was market value damage property, real must be limited to those which legal injury compen- accrue reason sation case, was due. In a similar held that evidence it was as to the damage reason of caused a diversion traffic highway properly construction was record stricken resulting the diminution because in value therefrom was by any injury caused for which landowner was entitled to damages. recover 137 (City Marengo, App. v. Stockton (2d) 467].) 764 this result Pac. will noted that [31 taking was reached California where a involved.
A similar conclusion also be reached where must dimi Many is involved. courts have indicated that the alone upon elements nution of value in such cases cannot be based to recover. is not for which the landowner entitled (2d) Ark. 1041 S. W. (Greer City Texarkana, 201 v. [147 540]; Spoor, 190 340 N. E. 1004]; City Chicago v. Ill. [60 Ky. Rep. 134, 84 Law Ry. Smiley, Int. Co. v. Camden La. Com., 191 Highway 523; Harrison v. Louisiana S. W. 354].) particularly This in so far true So. [186 concerned, appli even in states where diversion of traffic is correspond to in this state and rules those cable do not (Greer also taking involved. situations where rel. Texarkana, supra; ex v. Carrow City v. State Sullivan (2d) 896; Hazen, Fed. [Ariz.], Ralph v. Pac. ; Chicago Spoor, supra; v. State App. D. C. 55] 181]; Highway Com. Mont. 403 State Hoblitt, 87 674]; Alleghany Heil v. Chatham, 173 Miss. So. *23 341]; City El Paso v. elder Co., 330 449 Atl. Pa. Sandf of High (2d) 950; Nelson v. 118 W. State S. App.], Civ. [Tex. 915].) 689, 118 A. L. R. Board, 110 Vt. Atl. way a of de permitted consideration the few cases have While a traffic, they contrary to of are diversion preciation caused 921, seq.) authority. (See 118 L. R. A. et weight of the presented here was to the question involved precise supra. In the Chicago Spoor, that case v. City court in of adjoining landowners’ impaired the a viaduct building of testifying the damage, as to witnesses right of access. promi- that one of cross-examination the most admitted of was the nature of the traffic altered nent elements of the viaduct. The trial court refused after construction the testimony Supreme of strike Court Illinois 347): 340, (190 commented 111. that, . . that the view of the court was while appears
“It . profits for loss of to busi- party could sue recover viaduct, yet, injury of a if there ness on account was an abutting property recovery everything there for could be up lots, make that went to market value whether might being be a diversion or whatever it be. This traffic property affected, a suit where access to the was the court everything resulting held from improve- seems have unfavorably utility of ment which affected purposes damage.” an element of business And at page 350: resulting damages
“The evidence from diversion changing transportation traffic or method street legitimate was not purpose, opinions of witnesses depreciation based on from those causes should have been ’’ 352, excluded. page pointed At out: that, if a party “It could not be said should sue for dam ages traffic, recover, on account of a diversion of he could not legal right because he had no but, which infringed, had been if by cutting sued for he off access to his he could include from diversion of traffic as to which he right.” legal had no This rule has been followed in later (Illinois L. Corp. Talbott, 538, eases. P. & v. 321 Ill. 549 [152 ; N. E. P. Co. Wieland, Illinois v. Ill. 486] 272]; 879; N. 22 A. 159,163.) E. Am. Jur. L. R. think We City Chicago laid down in Spoor, the rule v. supra, is Damages resulting correct one. from an interference with private rights must be estimated with reference legal the diminution value caused injury. presence single compensable injury, of a such as impair easement, ment of an should not be made the basis for a re covery depreciation of the total value of landowner’s appears depreciation where it that much legally noncompensable attributable to factors. This conclu inevitably from a previous sion results consideration de principles cisions in this state controlling are (People Gianni, supra; City in those cases. Stockton v. Marengo, supra; Angeles, Los App. Wolff *24 742 2 v. Dist. No. 400 862]; County Pac. Sanitation [193 cf. 786]; Coast (2d) (2d) 556, 8 Cal. Pac.
Averill, App. 565 [47 App. 118 Cal. Lux, Counties Gas & Miller & Elec. Co. v. 144 34].) (2d) Pac. [5 Applying the above rules to not, the case at bar does how
ever, necessitate reversal judgment. place of the In first will it be noted that defendants’ motion was to strike all testimony. Woodward’s There was no effort to it to his limit damages estimate He concerning suffered. testified other matters which were properly presented in For evidence. illustration, he testified he that was plaintiffs’ familiar with property, that improvements the value of the $1,200, was that adapted is best use, to industrial agricultural that its purposes use is use to best which adapted, it is that improved with a residence, barn, highway tank and improvement that inter access, feres with the being and that there purposes used for vicinity industrial plaintiffs’ prop erty. predicate Defendants cannot error on the denial general motion all of to strike testimony, Woodward’s when only portions thereof were A motion inadmissible. to strike must precision be directed sought with to the matter to be (Dietlin stricken. 4 General American Co., Cal. Ins. Life (2d) 590].) A Pac. motion in to strike out gen may properly evidence admissible be denied it is where eral and embraces evidence which as that is admissible well (Powley Swensen, inadmissible. 722]; Co., Montgomery App. Brown v. 104 Cal. Ward & Pac. 474].) any event, it appear does not from the entire record error, any, prejudicial. if was be must remembered findings is no from there indication the trial court that it took into consideration diversion of traffic as damage. element of had Plaintiffs two valuation witnesses damages Woodward, found to addition to and the amount of considerably appearing have been suffered was less than testimony. premises their The court viewed the judgment arrived its as to the at own extent R. In Joint R. Highway suffered. Dist. v. Ocean Shore No. Co., supra, improperly admitted because value was evidence been, not have never elements were considered that should prejudicial, error theless the held stating page 765: at freely
“It
the above-
therefore
conceded
other
evidence
evidence in
record should
mentioned
necessarily
stricken,
have been
does not
follow that the
but
in admitting
and there-
action
the trial court
such evidence
*25
failing
prejudicial
the
to strike
same constituted
error
after
requiring
Ellingwood,
v.
reversal.
Stockton
of
page
quotes
Ely] City
supra,
at
court
from
v.
the
[Conan
Ely
Conan,
737],
Other contentions parties raised both require do not further they discussion for have been examined and found to be without merit.
For the upon reasons and herein, authorities contained judgment of the trial court is affirmed. Shenk, J., Curtis, J., concurred. HOUSER, J., Concurring. judgment concur in the —I
affirmance, I agree but do not with portion of the ma- opinion jority which holds that suffered as the result of diversion compensable. travel GIBSON, J., Dissenting. C. judgment dissent. The —I this case awards non-compensable based ele- *26 injury ments of and it should therefore be for reversed a new trial. principles
The upon of law agreement which the is in may be stated as follows: I,
1. 14, Article section of the California Constitution is self-executing, and a action cause of be stated under it necessity legislative express without the of sanction therefor. 2. An action may I, maintained under 14, article section abutting the upon public highway owner of impairment substantial of his easement of access to and highway by public improvement. the caused 3. shows, present case, Where the evidence as in the the public improvement of highway, construction in the although immediately adjacent property line, not to the inter- substantially ingress feres the landowner’s means with of egress, damages he is entitled to therefor.
4. recoverable such an action are those which flow impairment from the of landowner’s easement access, damage concerning of and the evidence should be bearing upon impairment. confined to matters 5. In this action the trial court committed permit- error in ting testimony upon to base their witnesses non-compensable damage, items of such as the diversion public of traffic from
745 concur- (The upon abutted. highway which the disagrees with ring opinion of Justice indicates that he Houser conclusion.) this on to hold majority opinion, however, goes upon improper based testimony refusal
trial court’s to strike error, damage if it was error, elements was not prejudicial. agree I do conclusion. with this California,
In
states,
in certain
policy
other
a liberal
adopted
opinion
been
has
admission of
con
evidence
cerning damage to
property.
part,
real
policy
this
justified
ground
on the
been
basis for
opinion
upon
explored
(Razzo
witness can be
cross-examination.
Varni,
v.
Considering intermingling by all complete witnesses damages by non-compensable caused elements with those impairment access, plaintiffs’ caused easement judge and the indications the trial had an view erroneous awarding what evidence was to be considered the dam- ages, apparent judgment necessarily upon it is rests misapplication damages of the law and awards substantial any theory. thereunder. This is reversible error under judgment should therefore be reversed for new trial principles the issue in accord with the have been stated.
Edmonds, J., Traynor, J., concurred. Appellants’ petition rehearing April for a was denied Gibson, J., Edmonds, J., Traynor, J., 1942. O. voted for rehearing.