SCHNIDER v. STATE

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District Court of Appeal, Second District, Division 2, California.

SCHNIDER et ux. v. STATE.

Civ. 18133.

Decided: May 10, 1951

Reuben Rosensweig, Los Angeles, for appellants. George C. Hadley, Los Angeles, Robert E. Reed, Sacramento, John N. McLaurin, Herbert J. Williams, Los Angeles, and Harry S. Fenton, Sacramento, for respondent.

From a portion of a judgment rendered in an inverse condemnation proceeding after trial before a jury, plaintiffs appeal, predicating error upon the trial court's instruction to the jury that plaintiffs had no easements of access to and from Olympic Boulevard at the time defendant erected a permanent wire fence along the line forming the south boundary of Olympic Boulevard and the north boundary of plaintiffs' lots.

Plaintiffs' contention is correct. Objection was made and sustained to their offer to prove that ‘Olympic Boulevard abutted plaintiffs' lots 127 and 130 with complete and free access to and from said lots for in excess of 30 days, following which the State of California installed a permanent fence along the entire length of plaintiffs' lots 127 and 130 and on and along the boundary line between said two lots and Olympic Boulevard, with the intent and purpose of permanently taking and barring all access rights of such lots, and each of them, to and from Olympic Boulevard.'1

An owner of a lot adjacent to a public highway to which he has ingress and egress has a property right in the right to enter and leave his lot for which he is entitled to damages in the event such right is taken in an eminent domain proceeding. (People v. Ricciardi, 23 Cal.2d 390, 398 et seq., 144 P.2d 799; art. I, Sec. 14, Constitution of California.)2

In view of the established law the trial court committed prejudicial error in not permitting plaintiffs to present evidence in support of the facts set forth in the offer of proof, supra.

There is no merit in plaintiffs' contention that the procedure followed in establishing and constructing Olympic Boulevard as a freeway was defective. There was received in evidence without objection a resolution of the California Highway Commission declaring that the public interest and necessity required the acquisition of the real property here involved for a public improvement.

When the State Highway Commission adopts a resolution declaring that public interest and necessity require the acquisition of certain real property for public improvements, such resolution becomes conclusive of the facts recited therein, and the same may not be disputed in the absence of a pleading in the trial court specifically charging fraud, bad faith or an abuse of discretion of such commission. Such question may not be raised for the first time on appeal. (People v. Milton, 35 Cal.App.2d 549, 552, 96 P.2d 159.)

In the instant case the objection now made was not presented to the trial court and was therefore waived by plaintiffs.

The judgment is reversed.

FOOTNOTES

1.  The omissions in the record before this court, pointed out in our opinion in Schnider v. State of California, 229 P.2d 847, filed April 17, 1951, in which a rehearing has been granted, have been corrected by a stipulation of the parties which has been made a part of the record in this court.

2.  Article I, Section 14, of the Constitution of California reads in part as follows: ‘Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for, the owner, * * *.’

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.

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