BACICH v. BOARD OF CONTROL ET AL

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District Court of Appeal, First District, Division 1, California.

BACICH v. BOARD OF CONTROL ET AL.

Civ. 10844.

Decided: July 16, 1942

Hubbard & Hubbard, John J. Batistich, and J. C. Miller, all of San Francisco, for appellant. U. S. Webb, Atty. Gen., John J. Dailey, Deputy Atty. Gen., Heller, Ehrman, White & McAuliffe, F. M. McAuliffe, Albert M. Monaco, and Keyes & Erskine, all of San Francisco, and C. C. Carleton and Robert E. Reed, both of Sacramento, for respondents.

Plaintiff appeals from a judgment for defendants entered after sustaining of demurrers to the original complaint without leave to amend. The defendants are the Board of Control of the State of California, California Toll Bridge Authority and the Department of Public Works of the State of California. Each defendant filed a separate demurrer, that of the Authority being general and special, while those of the other two defendants were general only.

The action is one in inverse condemnation brought by plaintiff, a property owner, to recover damages for the decrease in the market value of his property alleged to have been caused by the construction of the San Francisco approaches to the San Francisco–Oakland Bay Bridge. The complaint alleges that plaintiff is the owner of a three–story apartment house, used exclusively for residential purposes, located on the southwesterly side of Sterling Street between Harrison and Bryant Streets; that the defendants Toll Bridge Authority and Board of Public Works, pursuant to statutory authority, constructed the approaches to the bridge; that in so doing these defendants acquired and demolished all residential property except plaintiff's in the general area; that in constructing the approaches these defendants lowered the level of Harrison Street 50 feet below the level of Sterling Street; that the only way to reach plaintiff's property now is from Bryant Street; that in approaching plaintiff's property from Bryant Street it is necessary to pass under one of the approaches to the bridge; that as a result of closing the Harrison Street–Sterling Street intersection the street cars were removed from Sterling Street; that as a result of these acts the value of the plaintiff's property has been reduced from $20,000 to $6,000. The complaint also alleges that within two years after the claim accrued a verified claim for the damages suffered was filed with the Board of Control, which claim was denied October 22, 1936; that duplicate originals of the claim were filed with the Department of Public Works, the Toll Bridge Authority, and the California Highway Commission.

The main question presented on this appeal is whether the complaint alleges any damage for which the state or its agencies are liable. Before answering that question, certain preliminary matters must first be mentioned. In the trial court defendants successfully urged, and on this appeal they contend, that there is no cause of action in this state for damage to, as distinguished from the taking of, property by public agencies for a public use. In this connection it is urged that the eminent domain section of the Constitution (Art. I, § 14), prohibiting the taking or damaging of property without compensation, is not self–executing; that although the section provides that private property shall not be taken or damaged for public use without just compensation having been made to, or paid into court for the owner, nevertheless the owner may not sue the state or its agencies when his property has been damaged for the reason that the Legislature has not provided a form of remedy to recover such damage. This identical argument that the constitutional provision required further legislative action to make it effective was presented to, and squarely rejected by, the Supreme Court in Rose v. State of California, 19 Cal.2d 713, 123 P.2d 505. The court held in that case that the constitutional provision itself confers the right of action, is self–executing, and constitutes the consent of the state to be sued in such proceedings. The submission of the instant appeal has been held up to await the decision of the Supreme Court in that case. That decision having now become final, the holding therein is conclusive on this court on this point in the present case.

All defendants urge, in support of their general demurrers, that all three of defendants are merely state agencies, and therefore are not the proper defendants; that the state alone is liable for the damage suffered, and is the only proper defendant. After the demurrers had been sustained, the plaintiff requested leave to amend, and formally offered either to make the state a party, or, if the trial court believed the state should be the sole defendant, to substitute the state for the named defendants. The request for leave to amend was denied.

So far as defendant State Board of Control is concerned, this contention is sound. The only allegation in the complaint concerning that defendant is that it denied the claim. There is no allegation that it participated in the acts causing the alleged damage or that it is liable therefor. The demurrer of this defendant was properly sustained. But the position taken by the other two defendants is unsound. These defendants are admittedly state agencies, and according to the allegations of the complaint, were acting as such in performing the work causing the damage of which complaint is made. The state can act only through its agencies and, according to the allegations of the complaint, these two defendants were the two agencies through which the state acted. An analysis of the complaint discloses that it contains every allegation necessary to state a cause of action against the state. If a judgment is secured against these defendants it would be paid out of the state treasury. Under such circumstances, although undoubtedly the state is the proper party defendant, it was not error to sue the state through its official agencies. (California Securities Co. v. State, 111 Cal.App. 258, 295 P. 583), and it was error to refuse to permit plaintiff to amend by substituting the state as the real party defendant.

The demurrer of the Toll Bridge Authority urges that the cause of action, if any, alleged in the complaint is barred by §§ 667 and 688 of the Political Code. Section 688 has no reference to this proceeding. By express terms that section only applies to claims predicated “on express contract or for negligence.” This is a suit in inverse condemnation based upon a self–executing provision of the Constitution, and such proceeding is predicated neither on express contract nor on negligence. Rose v. State of California, supra, 19 Cal.2d at page 724, 123 P.2d 505. Section 667 requires a person having a claim against the state, the settlement of which is not otherwise provided for by law, to present it to the Board of Control “at least four months before the meeting of the legislature.” The complaint, it will be remembered, alleges that a claim was filed as required by this section, but the date it was filed is not alleged. Inferentially, however, it appears that it was not filed until after September 19, 1936, since it appears from a copy of the claim attached to the complaint that it was sworn to on that day. Since legislative sessions open on the first Monday after the first day of January in odd numbered years, a claim filed after September 19, 1936, would not be filed within four months of the convening of the 1937 Legislature in January of that year. Thus, if the section is applicable to such an action, it inferentially appears from the complaint that the claim may have been filed too late. But in his request for leave to amend after demurrers sustained, plaintiff offered to amend by alleging that the work on the approaches was not finished until September 20, 1936, and, hence that he was unable to file his claim within four months of the convening of the 1937 Legislature in January, 1937. Obviously, if the work was not completed within four months of the convening of the next session of the Legislature, the claimant is not required to do the impossible. As long as it is filed within four months of the convening of the Legislature which convenes next at least four months after the work is completed, the claim was filed in time. Under such circumstances, even if the section is applicable to such a proceeding, the trial court abused its discretion in refusing permission to amend as to this issue.

The major problem presented in this case is whether the complaint alleges any elements of damage that are compensable under Article I, section 14 of the Constitution. An analysis of the complaint discloses that plaintiff has alleged four elements of damage which he claims are compensable: (1) that because of the lowering of Harrison Street, the Sterling Street–Harrison Street intersection has been closed so that plaintiff's property is now located on a dead–end street, thus making the property less accessible, and interfering with a claimed right of ingress and egress; (2) that because of the lowering of Harrison Street the street cars formerly operating on Sterling Street have been removed; (3) that the only access to the property is from Bryant Street, and in order to reach the property from that direction it is necessary to pass under the bridge approach; (4) that in the immediate vicinity of plaintiff's property all residential property except plaintiff's was acquired and demolished by defendants in constructing the approaches. It seems quite clear that because other property was condemned (item 4), and because plaintiff must pass under the bridge approach (item 3), there being no allegation of impairment of any easement of light and air, plaintiff has no legal cause to complain. Such factors in no way interfere with any property right of plaintiff. The same can be said as to the diversion of the street car line to another street––item 2. It is well settled in this state that a landowner has no property right in the continuation or maintenance of the flow of traffic past his property. The diversion of traffic caused by the improvement impairs no property right of the property owner. Rose v. State of California, supra, 19 Cal.2d at page 736, 123 P.2d 505. Thus, the only element of damage alleged and left for consideration is item 1, supra. The problem here presented is whether depreciation in value caused by closing one end of the street on which plaintiff's property is located, so that the property is now located on a cul–de–sac, is compensable. This depends upon the nature and extent of the legal rights of an abutting property owner in the streets upon which his property abuts. It is now too well settled to require extended discussion that the property owner has a right of access, a right of ingress and egress to and from his property, along the street upon which his property faces. This right of access is an easement, a property right, and any damage to that right is compensable. Rose v. State of California, supra, 19 Cal.2d at page 727, 123 P.2d 505; McCandless v. City of Los Angeles, 214 Cal. 67, 4 P.2d 139; Lane v. San Diego Elec. Ry. Co., 208 Cal. 29, 280 P. 109; Wilcox v. Engebretsen, 160 Cal. 288, 116 P. 750; Williams v. Los Angeles Ry. Co., 150 Cal. 592, 89 P. 330; Eachus v. Los Angeles, 130 Cal. 492, 62 P. 829, 80 Am.St.Rep. 147; Brown v. Board of Supervisors, 124 Cal. 274, 57 P. 82; Geurkink v. City of Petaluma, 112 Cal. 306, 44 P. 570; Bigelow v. Ballerino, 111 Cal. 559, 44 P. 307; Eachus v. Los Angeles, etc., Ry. Co., 103 Cal. 614, 37 P. 750, 42 Am.St.Rep. 149; Zobelein Co. v. City of Los Angeles, 6 Cal.App.2d 29, 43 P.2d 818. There can be no doubt, in this state, that, if the street immediately in front of, or immediately adjacent to, the property is narrowed so that access to the property is materially impaired, a property right has been infringed entitling the property owner to compensation. That was one of the problems discussed in Rose v. State of California, supra. (See, also, the other cases above cited.) Whether this right of access, this right of ingress and egress, is impaired by infringements not occurring immediately in front of or adjacent to the property, is a problem on which there is a hopeless diversity of opinion. The solution of this problem turns upon whether the right of access is something more than the mere right to get from the property into the street fronting the property. Can the property owner complain if the public improvement affects his right of access by closing the street in one direction so that access to his property is completely cut off in one direction? California, apparently, has not yet chosen between the two lines of authority, although there are some intimations in Rose v. State of California, supra, implying that the impairment of the right need not occur directly in front of or adjacent to the property. In that case the court found the law of California to be that depreciation to be recoverable must arise from “infringement of some right which the owner of land possesses in connection with his property.” 19 Cal.2d at page 739, 123 P.2d at page 520. It was held that the property owner has an easement of access which is a property right, “private easements in the street in front of or adiacent to the lot––distinguished from the public easements therein––which are a part and portion of his property and are the private property of the lot owner as fully as the lot itself.” 19 Cal.2d at page 727, 123 P.2d at page 514. The rights of the abutting owner are the rights of access and the right of light and air. The opinion indicates that the right of access is an easement for the purposes of ingress and egress from the owner's property to the abutting street. The court was of the view that the evidence that the plaintiff's property in the Rose case was left on a 14–foot lane for vehicular traffic, too narrow for two vehicles to pass each other, where before the improvement it had been on a main highway, sustained a finding of unreasonable interference with the easement of access. Whether the court merely intended to hold that the right of access was interfered with because the abutting street was too narrow for comfortable vehicular access, or whether the court meant that the plaintiff could recover for the increased difficulty of getting into the main traveled portion of Jackson Street on which his property formerly fronted, is not absolutely clear from the opinion. That the court meant the latter may be indicated by the following language:

“Defendants contend that this court should hold as a matter of law that there was no interference with plaintiffs' easement of access or right of ingress and egress in this case, and also that the evidence does not sustain a finding of such interference. The former contention is based upon the theory that plaintiffs' easement merely entitles them to cross from their own property onto the street or highway on which it abuts. It is also claimed by defendants that whatever circuity of travel is caused thereafter is merely an inconvenience suffered after reaching the street or highway. These contentions cannot be sustained. * * *

“The issues before the trial court in the case at bar were, whether plaintiffs' right of access to Jackson Street was substantially and unreasonably impaired by the construction of the subway, and, if so, the amount of damage suffered as the result of such interference.” 19 Cal.2d at pages 728, 729, 123 P.2d at page 514.

The court discussed the legal effect of the closing of a street crossing, although that was not the precise problem involved in that case. It said:

“Relying very strongly upon the cases which have held that the closing of a street crossing by the railroad commission is damnum absque injuria as to nonabutting property owners, defendants maintain that plaintiffs certainly cannot complain because they must travel a narrow side lane to reach the main traveled portion of the street when they could not recover if the street were closed entirely.

“Briefly, we may observe that recovery has been denied in those cases upon the ground that the injury is one suffered in common with the public, is not special or peculiar to the particular property involved, and the difference in damage is one of degree and not of kind depending upon the property owner's proximity to the closed crossing. Compensation has also been refused on the ground that the landowner's easement of access is not in fact impaired, that convenient and reasonable means of ingress and egress is afforded, although not the quickest and closest route to traveled thoroughfares. We have observed also that a growing number of decisions denying recovery for damages to nonabutting owners of property on closed streets are prompted by the economic factors involved. Since every property owner for a great distance therefrom is somewhat inconvenienced by the closing of a street, the question of where to stop awarding damages is not only difficult to ascertain, but the payment of damages in every case of this character would place a great burden upon the public whenever such closings are ordered.

“The cases determining what does and what does not constitute a compensable damage when a street is ordered closed are in considerable confusion, and this decision will not be benefited by a lengthy consideration of the authorities cited by defendants on this proposition. Defendants contend that the case of City of San Mateo v. Railroad Comm., 9 Cal.2d 1, 68 P.2d 713, 718, decides conclusively that the closing of a grade crossing is under the police power and any injury resulting therefrom is damnum absque injuria. The court therein stated that in the absence of facts to the contrary it would assume that none of the plaintiffs' property directly abutted on the area to be closed, and that the private property in question was contiguous to either county or state highways connected by public crossings. The court then held that the nature of abutting owner's right is ‘an easement in the street fronting upon his lot, for the purposes of ingress and egress,’ and concluded that no such right had been taken away in the case before it. * * *

“We are not here called upon to determine whether a property owner may recover damages in a case where his property is situated on a street created into a cul de sac as the result of the closing of the street on either side of his property without interfering with his right of access to the street on which his property abuts, as this is not such a case.” 19 Cal.2d at page 731, 123 P.2d at page 516.

It would appear from the foregoing that the court in the Rose case, although expressly refraining in the last paragraph above quoted from passing on the question here involved, intimated that the right of access extends beyond the mere physical right to get into the street in front of the property. This intimation is in accordance with reason, and with the weight of authority elsewhere. This exact problem is the subject of an exhaustive annotation in 49 A.L.R. 330, 351. Cases from many states are there collected and commented upon. At page 351, under the heading “Cul–de–sac,” the rule is stated as follows: “The weight of authority supports the proposition that if, by the vacation or closing of a street, access to property from the general system of streets in that direction [is prevented], and the property is left fronting on a cul–de–sac, the owner may recover damages.” Cases from Connecticut, Indiana, Kentucky, Minnesota, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Tennessee, Texas and Canada are then cited and discussed as supporting that rule. Later cases are collected in a supplementary annotation in 93 A.L.R. 639, 642. In this annotation at page 642 it is stated: “As indicated in the earlier annotation, generally the owner has been held entitled to damages where, by the vacation or closing of a street, access to his property from the general system of streets in that direction is cut off and the property is left fronting on a cul–de–sac.” Cases from the federal court and from Georgia, Kentucky, Nebraska, Oregon, and Pennsylvania are cited in support of the text. See, also, Atchison, T. & S. F. Ry. Co. v. Terminal Oil Mill Co. 180 Okl. 496, 71 P.2d 617, a particularly well–reasoned case.

The general theory running through these many cases is that the right of access is something more than the mere right to get into the street immediately in front of the property; that such right is that of reasonable use of the street fronting the property in either direction to the next intersection; that any material impairment of that right, if it causes damage, is compensable. This rule is predicated on what we consider to be sound considerations. The rule which limits the right to the mere right of access to the street immediately in front of the property is artificial. Obviously, if the street is closed at both ends, the right to get into the street immediately in front of the property is of no practical value. No one denies that where the street is thus completely closed compensation for impairment of the right of access must be paid. Bigelow v. Ballerino, supra. When the street is closed at one end, situations can be imagined where the right to go in the opposite direction would be of no practical value. Thus, where the property is located on a highway with no intersections for several miles, and in one direction lies the city and the other the country, and the highway is closed towards the city, the right to proceed several miles into the country before coming to an intersection would be of little practical benefit to the land. When, by reason of the closing of one end of the street the property becomes situated on a cul–de–sac, so that the property owner is cut off from travel in one direction, he has suffered a damage of the same kind, differing only in degree, from the imagined situation. In our opinion, the better reasoned cases hold that the right of access includes the right to adequate access to the property from either direction. It includes the right of ingress and egress to and from the property in either direction and the use of the street in either direction, to the next intersection.

It is true that there are a respectable number of cases that hold that in a cul–de–sac situation the property owner has not been damaged. Those cases are collected in the two annotations to which reference has been made. Many of them were decided in states where the constitutional or statutory provisions allowed recovery only for the taking of property, no recovery being allowed for the mere damaging of property. Those cases are clearly distinguishable, because the constitutional right of the property owner in this state extends to freedom from damage as well as from a taking.

Some of the other cases announcing the minority rule are predicated upon purely economic grounds––that is that the cost of public improvements would be prohibitive if damages were recoverable in such situations. Those cases argue that, if property owners abutting on the closed street are entitled to compensation, property owners for an indefinite distance in either direction will likewise be entitled to compensation, and the cost of the public improvement will thus become prohibitive. That is not so. The right of the property owner is limited to access and use of the street upon which his property fronts to the next intersection in either direction. Property owners beyond that point have suffered no damage different from that suffered by the general public. As so limited, there can be no basis for the fear that the cost of the improvement will be prohibitive. If there is no material damage, the amount of which is a question of fact, the increased cost will be small. If the damage is large, there is no reason why it should be suffered by the individual. If the property right, as here defined, has been damaged, the Constitution grants the right to damages. If the law is to be changed it should be changed by constitutional amendment and not by judicial mandate.

Some of the cases announcing the minority rule state that no property right has been impaired in a cul–de–sac situation because the property owner is only subjected to the same inconvenience to which the public generally is subjected, only to a greater degree. It is true that the public generally has a legal right to pass over public streets, and that that right is impaired by the closing of a street. It is also true that damage to that right by the closing of a street is not compensable. But that right is not a property right. The right of access, as already pointed out, is an easement, and is a property right. If that property right is impaired, and, as a result, the value of property is lessened, the property owner is entitled to compensation. The property owner has suffered a damage peculiar to himself, and vastly different not only in degree but in nature from that suffered by the public generally. That right of access is the right of reasonable access to the street fronting the property, and includes the use of that street in both directions to the next intersection. Of course, the amount of damage, if any, to each property owner within the block, is a question of fact which must be left to the jury to be determined according to the usual rules applied in such cases.

From what has been said, it is clear that the trial court abused its discretion in sustaining the demurrers of the Toll Bridge Authority and the Board of Public Works to the original complaint without leave to amend, and in denying plaintiff's request for leave to amend. The judgment is reversed with instructions to the trial court to grant plaintiff's motion for leave to amend.

PETERS, Presiding Justice.

KNIGHT and WARD, JJ., concurred.