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District Court of Appeal, Fourth District, California.


Civ. 2434

Decided: February 21, 1940

James H. Howard, Arthur A. Weber, Charles C. Cooper, Jr., and Donald M. Keith, all of Los Angeles, for appellant. Miguel Estudillo and C.L. McFarland, both of Riverside, for respondents.

This is an action in eminent domain for the purpose of condemning certain parcels of land for use as a part of what is known as the Cajalco reservoir in Riverside county. The action was brought on March 11, 1935. On August 21, 1935, an order was made, pursuant to article I, section 14, of the Constitution of this state, granting to the plaintiff the right of immediate possession and use of the lands upon the deposit in court of certain sums as security. The action was partly tried in 1936, but the issue as to the amounts of damage or the market values was tried before a jury in 1938. The verdict, findings and judgment all contained, in addition to the amounts found as the value of the respective parcels, further sums covering interest at seven per cent, with respect to each of these amounts, from the date of taking possession of the lands to the date of entry of judgment. The plaintiff has appealed from those portions of the judgment which covered these allowances for interest, and the legality of such allowances is the only question presented on this appeal.

The appellant relies upon the general rules that, unless specifically allowed by law, interest is not allowed prior to judgment on unliquidated claims and is not allowable on claims against a municipal corporation, and contends that in this state there are neither statutory nor constitutional provisions allowing interest under these circumstances. The respondents, on the other hand, contend that interest covering the period of time during which an owner is deprived of the possession and use of his lands is necessarily a part of the just compensation guaranteed by the Constitution, and further argue that the allowance of such interest is authorized by that part of section 1249 of the Code of Civil Procedure which reads: “If an order be made letting the plaintiff into possession, as provided in section 1254, the compensation and damages awarded shall draw lawful interest from the date of such order.”

The part of section 1249 which we have just quoted was included in that section as enacted in 1872. At that time section 1254 of that code provided that the court might, at any time after the service of summons, authorize the plaintiff to take possession and use the property pending the final determination of the action, upon the giving of certain security. This provision, to which the quoted portion of section 1249 referred, was held unconstitutional. Vilhac v. Stockton & I.R.R. Co., 53 Cal. 208, and cases there cited. Thereafter, and for some forty years, there was no provision in this state, statutory or otherwise, permitting the taking of possession of land in such an action prior to the entry of judgment, to which the quoted portion of section 1249 could have been applied.

Section 1254 was amended several times, the last being in 1903. Stats.1903, p. 109. Since that date it has provided that possession of the land involved might be taken after judgment and pending appeal upon an order of court and the giving of certain security. In 1911 (Stats.1911, p. 842) section 1249 was amended by adding a provision to the effect that where the action was not tried within one year and the delay was not caused by the defendant the compensation and damages should be fixed as of the date of the trial. By a constitutional amendment adopted in 1918, provision was again made for the taking possession of land prior to judgment, in such an action as this, upon an order of court and the giving of certain security. This provision, as amended in 1934, is now section 14 of article I of the state Constitution. It provides that private property shall not be taken or damaged without just compensation and, among other things, provides that a metropolitan water district may, immediately after suit is filed, take possession of the land on depositing in court such sums as the court may deem adequate to secure the “payment of just compensation for such taking and any damage incident thereto”. (Italics ours.) The real question here involved is whether or not the adoption of section 14 of article I of the Constitution has revived and made effective the interest provision of section 1249 of the Code of Civil Procedure which was ineffective for so many years, and whether the provision for interest contained in section 1249 is now to be taken as referring to and applying to the provision for immediate possession now contained in that section of the Constitution.

While this question has not been decided in this state, some light is furnished by the case of Vallejo, etc., R.R. Co. v. Reed Orchard Co., 177 Cal. 249, 170 P. 426, 428. In that case, the award was paid into court but the landowner appealed. Pending the appeal the condemnor secured an order for the possession of the property, as then and now provided for in section 1254 of the Code of Civil Procedure. After the judgment was affirmed the landowner sought an order for the payment to him of the amount of the award, plus interest from the date of the order for possession to the date of the filing of the remittitur. This being denied, he appealed. The court reviewed sections 1249 and 1254, with the various amendments thereto, and held that none of these amendments had revived the interest provision of section 1249 which had remained therein since its original adoption in 1872, and held that there was then no provision for the allowance of interest, as therein claimed, for the period between the order for possession of the land and the termination of the appeal. While the court recognized the justice of the original provision for interest contained in section 1249, since the measure of damage at that time was the value of the property at the commencement of the action and no provision was otherwise made for compensating the owner for the use of the property prior to the entry of judgment, it pointed out that this provision for interest had not been preserved or revived by the amendments to section 1249 and to section 1254. In this connection the court said: “Where a statute by adoption refers, not to a particular statute or provision thereof, but to the law generally which governs the particular subject, the reference is to be construed as applying, not only to the law as it existed at the time of enacting the adopting statute, but to the law as changed from time to time, and as it exists when invoked in an action or proceeding. Gaston v. Lamkin, 115 Mo. 20, 21 S.W. 1100; Culver v. People, 161 Ill. 89, 43 N.E. 812. Not so, however, when, as here, it designates and adopts an entire provision contained in a section of the Code by reference to its descriptive number. In such case the statute so adopted by reference is the same as though the provision adopted had been bodily incorporated in the adopting statute. People v. Whipple, 47 Cal. 592; Ex parte Lemon, 143 Cal. 558, 77 P. 455, 65 L.R.A. 946. In the absence of express intent to the contrary, and none is apparent here, the reference made in section 1249 as originally enacted must be construed as referring to the provision contained in section 1254 as it existed at the time when section 1249 was passed; and it cannot be interpreted as adopting an entirely new provision designated as section 1254.”

In referring to the amendment of section 1249 in 1911, by which the value of the land is in some cases to be fixed as of the date of the trial where more than a year had elapsed, the court said: “The intent of the Legislature was to enact the change as indicated without in any wise affecting the portions of the statute merely copied; hence by such copying no new, greater, or different force attached to the reference provision of section 1249 other than that to which it was entitled when originally enacted in 1872, which, upon being held in contravention of the Constitution, was repealed, and a new and entirely different scheme substituted therefor. For that reason there was nothing upon which the language used could operate, and the mere retention of the reference in amending section 1249 in 1911 cannot be construed as referring to and adopting the provision of section 1254, as now existing, between which and the provision contained therein when section 1249 was enacted there is not the slightest analogy.”

Under the reasoning of the case just referred to, the adoption of a newly-numbered code section, in 1918, providing for the taking of possession of such land under a court order prior to judgment, would not have made the interest provision of section 1249 applicable, since the reference therein is specifically to section 1254, as it originally existed, and not to a general law governing that subject. If the interest provision of section 1249 would not apply to a new statute containing somewhat similar but different provisions from those of the statute to which specific reference is made, it would seem even more logical to hold that that provision, after lying dormant for many years, does not apply to and is not to be taken in connection with a new constitutional provision which, while it contains matters somewhat similar to some of those in the statute originally referred to, also purports to set up a complete and different scheme for handling the same subject-matter. Section 14 of article I of the Constitution, which was in force at the time this action was tried, after providing for just compensation to the owner of the land, provides for the taking of possession at any time after suit is brought upon order of court and upon the depositing of money in the amount fixed by the court by the way of security, not only for just compensation for such taking of the land but for “any damage incident thereto”. The loss of the use of the land, pending trial of the action, is incidental to the taking of the land, and the resulting damage is one “incident thereto”. Since it is thus provided that the money deposited is to also stand as security for any damage incident to the taking of the property before judgment, it must have been intended that such incidental damage should be considered in fixing the just compensation for the taking of the land, to which the owner is entitled. Since this element is to be considered in fixing the just compensation, it would seem to follow that it is to be considered by the jury, or trier of fact, and that the question as to whether the owner had been damaged by being deprived of the use of the property, together with the amount of any such damage, were questions to be decided as matters of fact at the trial of the action. This being so, it would further seem that the intent of the legislature, in submitting this constitutional amendment to a vote of the people and the intention of the people in adopting it, was to reject the idea of adopting the legal rate of interest as the measure of such damage and, in lieu thereof, to adopt and provide an entirely different way of measuring that damage.

It may be conceded that, in some cases, it would be just and right, where possession of land is taken before judgment, to allow as one element of the damage suffered interest on the amount awarded. This is not always true, however, under statutes permitting the fixing of the value of the land as at the time of trial, instead of at the time summons is issued, because the value of the land may have increased in the meantime and to then allow interest would be to allow a double benefit for the same thing. The incidental damage resulting from the loss of the use of the land, pending the trial of the action, may be greater or less than the legal rate of interest, depending upon many circumstances. While the legislature or the people could have provided that interest at the legal rate should be taken as the measure of the damage arising from such an interim loss of use of the land, they have not done so. While in some cases an owner may be damaged by losing the use of the land during such a period, the extent of such damage cannot be presumed under existing statutes or constitutional provisions, and the amount of such damage, if any is a question of fact to be decided in connection with the other issues and upon which proof is necessary.

We conclude, therefore, that the court erred in instructing the jury to add interest at 7 per cent to the amounts found as the value of the respective parcels, and in making findings and entering judgment which included these items of interest.

Those portions of the judgment which are appealed from are reversed.

BARNARD, Presiding Justice.

We concur: GRIFFIN, J.; THOMSON, Justice pro tem.

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