PEOPLE v. BUELLTON DEVELOPMENT CO INC ET AL (1942)

Plaintiff brought this proceeding to condemn land for a state highway, seeking by the complaint to take the fee of the land, as it was authorized to do by sections 102 and 104 of the Streets and Highways Code, St.1935, p. 255. The appellants, who were made defendants, filed an answer and also a cross–complaint. By this cross–complaint the appellants alleged that they had certain easements covering a part of the land to be condemned and other land, and for the protection of these easements they sought relief against several of their co–defendants, as well as the plaintiff. On plaintiff's motion this cross–complaint was stricken out and the appeal before us is from the order striking it out. The respondents have raised no question regarding the right of appellants to appeal from this order, but we have given some consideration to that question and conclude that the order is in effect a final judgment and hence is appealable. Had the cross–complaint been aimed at the plaintiff alone, the case would have been within the ruling in Yandell v. City of Los Angeles, 1931, 214 Cal. 234, 4 P.2d 947, and other like cases, and no appeal would lie from the order striking it out, the defendant filing it being left to an appeal from the judgment finally rendered. But as to the other defendants to the original action, against whom the cross–complaint was filed, the case is the same as Howe v. Key System Transit Co., 1926, 198 Cal. 525, 533, 246 P. 39, where it was held that, as to such defendants, an order striking out a cross–complaint is a final judgment, in legal effect, and therefore is appealable. This case was not overruled in Yandell v. City of Los Angeles, supra, but merely distinguished by reason of the difference just stated in the facts.

The appellants, in their cross–complaint, alleged that they were the owners of a large tract of land, which, as far as we can discover from the record, did not include any part of the land which plaintiff sought to condemn by its complaint. The cross–complaint further alleged, however, that, as appurtenant to said tract of land, appellants owned easements over described parcels of land belonging to the defendants Gregersen and California Diatomite and Asphalt Corporation, which parcels did include a part of the land sought to be condemned by plaintiff; that said easements were for the purpose of allowing cattle to pass between appellants' land and Zaca Creek where they were accustomed to water and rest; that in the space covered by said easements there were two cattle passes built by the plaintiff under the existing state highway, which cattle used in going to Zaca Creek; that plaintiff and defendants Gregersen claimed that the defendants Gregersen had the sole right to use the southerly of said two cattle passes, which was on land owned by them subject to the state highway easement, and denied that appellants had any right therein or to any of the easements alleged to be owned by appellants over the Gregersen land and had conspired to exclude appellants from the use of said easements; that the defendant California Diatomite and Asphalt Corporation denied that appellants had any right in that portion of said easements of appellants which extended over its land and threatened to shut off the northerly of said cattle passes and to tear down fences, so making appellants' easement useless. The cross–complaint further alleged that a controversy existed between appellants and these other defendants and the plaintiff with relation to appellants' rights in these easements, giving details of it, and prayed for a judgment quieting appellants' title to these easements against plaintiff and the other defendants and granting it declaratory relief to the same effect, and also for the fixing of the amount to be paid appellants for the taking of their easements, and for general damages in the sum of $2,500.

The situation then resolves itself down to this: The plaintiff has made appellants parties to this action for the purpose of condemning their easement in the land which plaintiff desires to take for a state highway; plaintiff's declared intention of taking the fee, with no reservation or exception of any easement in appellants, will, when carried into a decree of condemnation, completely end appellants' present easement, so far as the land described in the complaint is concerned; and since that land intervenes between appellants' land and Zaca Creek, where appellants' cattle go for water by using the easement, it will apparently deprive appellants of any practical use of the entire easement. Such an easement is property, which cannot be taken or damaged for public use without payment of compensation. Erro v. City of Santa Barbara, 1932, 123 Cal.App. 508, 512, 11 P.2d 890; McCandless v. City of Los Angeles, 1931, 214 Cal. 67, 71, 4 P.2d 139. Appellants' ownership of this easement is disputed, not only by plaintiff, but by the other defendants named, and appellants by their cross–complaint are attempting to have it determined that they do own the easement and have the extent of it fixed.

One of plaintiff's objections to the cross–complaint is that appellants could set up their interest by answer and by that means obtain a determination, as against plaintiff, of the existence and extent of the easement and the amount to be paid them for its taking and damage. This is true (Code Civ.Proc. secs. 1246, 1247, 1248), but it does not follow that appellants may not maintain their cross–complaint so far as it seeks relief against other defendants. Plaintiff also contends that a defendant in a condemnation suit may not inject into it issues not affecting the plaintiff but arising between such defendant and other parties. We do not think this is true in all cases. Eminent domain, or condemnation, proceedings are provided for by Title VII, Part III, of the Code of Civil Procedure, in which is included section 1256 providing: “Except as otherwise provided in this title, the provisions of part two of this code are applicable to and constitute the rules of practice in the proceedings mentioned in this title.” Part II includes the general rules of practice in civil actions, one of which is section 442 authorizing cross–complaints, as follows: “Whenever the defendant seeks affirmative relief against any party, relating to or depending upon the contract, transaction, matter, happening or accident upon which the action is brought, or affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a cross–complaint.” The first alternative stated here, sometimes called the “transaction” clause because it originally referred only to a transaction, is not applicable to a condemnation proceeding, for no transaction or other subject matter now referred to in that alternative is involved in such a proceeding. Such proceeding does, however, relate to property, that is, the property which the plaintiff seeks thereby to acquire. Consequently, a defendant may file a cross–complaint affecting that property, except, of course, as the provisions of the title on eminent domain otherwise provide, as they do in the sections above referred to, as far as any recovery of compensation from the plaintiff is concerned. In so far as the cross–complaint here was directed at the plaintiff for the purpose of determining appellants' interest in the property to be condemned and obtaining an award of damages therefor it was unnecessary and improper. Had it been limited to that purpose it would have been proper to strike it out. But a motion directed at the cross–complaint as a whole, as was plaintiff's motion here, could properly be granted only if the cross–complaint as a whole was improper for any purpose. The motion could not be used to raise questions of uncertainty or of misjoinder or other such matters which might afford proper grounds of demurrer. Allerton v. King, 1929, 96 Cal.App. 230, 235, 274 P. 90. Here the cross–complaint prayed for relief against the defendants by way of quieting title to the easement claimed by appellants. This easement covered a part of the land to which the action related, that is, the land which plaintiff sought to condemn, and the relief demanded by appellants therefore affected that land, and was within the permission granted by section 442. We find no case directly in point on this question, but the right to file a cross–complaint in a condemnation proceeding was recognized in Felton Water Co. v. Superior Court, 1927, 82 Cal.App. 382, 256 P. 255, and tacitly conceded in City of Los Angeles v. Darms, 1928, 92 Cal.App. 501, 503, 268 P. 487.

Plaintiff argues that a cross–complaint cannot be permitted in an eminent domain proceeding because it would prevent the abandonment of the proceeding, and the consequent dismissal, authorized by section 1255a of the Code of Civil Procedure. This effect of such a cross–complaint, it is argued, would follow from the provision of section 581 of the Code of Civil Procedure which forbids a voluntary dismissal by the plaintiff in an action where affirmative relief is sought by cross–complaint. The argument is not sound. Section 581 is one of the rules of practice in civil actions which apply to eminent domain proceedings only by virtue of their adoption therefor by section 1256 of the Code of Civil Procedure, above quoted, and only in so far as not otherwise provided in the title on eminent domain. Since it is “otherwise provided” in section 1255a, a part of that title, the provision of section 581 just referred to is not applicable and does not forbid the abandonment of such a proceeding by the plaintiff even though there is a cross–complaint. The issues raised on a cross–complaint are severable from those upon the original complaint, and apparently the case could proceed upon the cross–complaint after plaintiff's abandonment (see Pacific Finance Corp. v. Superior Court of Los Angeles County, 1933, 219 Cal. 179, 25 P.2d 983, 90 A.L.R. 384), but we need not so decide at this time, as there is nothing in the record before us to show such an abandonment.

Plaintiff objects that the cross–complaint covered other land than that to be condemned, as described in the complaint, and raised issues as to the title to such other land. But it is well established that in an action involving land as its subject matter, a cross–complaint affecting that land and also other land may properly be filed, where the cause of action set up therein affects such other land and that described in the complaint as a unit, or in such manner that one cannot be separated from the other without prejudice to the party filing the cross–complaint. Stockton Savings & Loan Soc. v. Harrold, 1900, 127 Cal. 612, 618, 60 P. 165; Newhall v. Bank of Livermore, 1902, 136 Cal. 533, 535, 69 P. 248; Tonini v. Ericcsen, 1933, 218 Cal. 43, 47, 21 P.2d 566; H. & J. Mabury Co. v. Bryant, 1937, 9 Cal.2d 586, 590, 71 P.2d 1111; Brown v. Luddy, 1932, 121 Cal.App. 494, 507, 9 P.2d 326; Halterman v. Pacific Gas & Electric Co., 1937, 22 Cal.App.2d 592, 594, 71 P.2d 855. The cross–complaint here comes well within this rule. The appellants, having been brought into court in a proceeding which necessitates a determination of the existence and extent of their claimed easement as between them and the plaintiff, are entitled to have a determination which will be binding on the other defendants also, as owners of the servient tenement. The fact that appellants' claim is only of an easement does not prevent them from maintaining their cross–complaint for that purpose. Tonini v. Ericcsen, supra; Halterman v. Pacific Gas & Electric Co., supra.

The order striking appellants' cross–complaint is reversed.

SHAW, Justice pro tem.

SHINN, Acting P. J., and PARKER WOOD, J., concur.