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


Civ. 8250.

Decided: December 21, 1934

Bernard Brennan, Aubrey N. Irwin, and A. L. Lawson, all of Glendale, for appellant. Freston & Files and Ralph E. Lewis, all of Los Angeles, for respondent.

A proceeding was commenced by defendant city under the Street Opening Act of 1903 (Stats. 1903, p. 376, as amended) to condemn for street purposes ten feet on the front of certain lots owned by one Khodigian. November 1, 1926, an interlocutory judgment was entered in favor of Khodigian for the sum of $2,937.20. December 14, 1926, the latter deeded said lots to one Brown, who was an officer of and acting in behalf of the bank to whose rights plaintiff herein succeeded. At the same time and by a separate instrument Khodigian assigned to Brown his interest in and to said award. Such assignment was not recorded. On December 31, 1926, Brown deeded the property to one Eversole, and by mesne conveyances the title thereto was finally vested on one Jewett, May 26, 1927. On February 28, 1927, Brown executed an assignment of said award to plaintiff's predecessor. All of such deeds of conveyance included the portion sought to be condemned for street purposes without exception, reservation, or agreement concerning the portion to be condemned or the disposition of any compensation therefor, but did contain the usual provisions making such conveyances subject to conditions, reservations, rights, and rights of way of record. In due time an assessment was levied by the city against the portions of the lots not subject to condemnation, amounting to $3,202.03. Said Jewett, who owned the property at that time and “had no notice or knowledge” of the assignment of the award “nor of any agreement that he should not be entitled to the award except such as might be implied by law,” obtained from Khodigian a “satisfaction of judgment in duplicate for the aforementioned award, together with a written demand to offset said assessment by the amount” thereof. The city's street superintendent complied with such demand and Jewett paid the difference in cash, whereupon the superintendent filed a duplicate satisfaction of judgment and demand with the clerk of the superior court. Said superintendent had no knowledge of said assignment prior to the time the assessment was paid and satisfied, nor any notice thereof except “such as might be implied by law.” April 18, 1928, final judgment was made and entered in said proceeding confirming in all respects the interlocutory judgment as to said lots and condemning said frontage for street purposes. Defendant city did not enter into possession of the property until after said final judgment. A claim was filed by plaintiff's predecessor with said city for the amount of the award, which was denied.

The facts above recited were stipulated, and judgment was entered in favor of plaintiff for the amount of the award, with interest from the date it was offset and paid as aforesaid. From such judgment defendant has appealed.

Appellant's contention is, in effect, that the interlocutory judgment merely fixed the price at which the city could take the property and that it had the option to take it or not up and until the payment of the award, and that a deed to the property not reserving a right to the award, after such interlocutory decree and prior to such payment, as shown by the evidence here, “passes the property with all rights and burdens appertaining thereto, precisely as if no such judgment had been rendered, save that the grantee takes as the grantor, held subject to the right of the public to acquire the same upon payment of the amount of the judgment” (Price v. Engelking, 58 Ill. App. 547, 551); that under such circumstances “the right to damages passes, as an incident to the land, to the succeeding owner” holding title at the date of taking (Obst v. Covell, 93 Minn. 30, 100 N. W. 650); and that “the right to the damages only became complete when the right of the public became complete”, which was long after respondent's predecessor had parted with the title to the land. Hull v. Phillips, 128 Mo. App. 247, 107 S. W. 21. On the other hand, respondent urges that the right to the award accrued and became personal to Khodigian at the time the interlocutory decree was entered, and passed to respondent's assignee Brown, by the separate assignment and separate and apart from the conveyance of Khodigian's interest in the land.

Regardless of what the law may be elsewhere or may heretofore have been supposed to be in California, we are compelled to say that we think it is now as respondent contends, in view of the recent decision of Tom v. Eddy, 137 Cal. App. 577, 31 P.(2d) 443. The history of such decision is not only interesting but, as we read it, it seems to shatter appellant's contentions. The trial court therein granted a motion for nonsuit at the close of plaintiff's evidence and the judgment thereupon entered was reversed by the District Court of Appeal. 29 P.(2d) 803. Such court, however, thereafter vacated such decision and on authority of Security Co. v. Rice, 215 Cal. 263, 9 P.(2d) 817, 818, 82 A. L. R. 1059, and McDaniels v. Dickey, 219 Cal. 89, 25 P.(2d) 404, reversed itself.

The case of Security Co. v. Rice, supra, as we read it, holds “that, where property is purchased which is subject to pending condemnation proceedings and the deed conveying said property is silent as to the award money to be paid in the proceedings, said money belongs to and is payable to the purchaser”; and also that parol evidence cannot be introduced to contradict the terms of a deed conveying property subject to condemnation proceedings which conveys the entire property and is silent as to the award. It is to be noted, too, that such decision cites with apparent approval the cases cited and quoted from in stating appellant's contentions herein, and quotes from the case of Price v. Engelking, supra, which squarely supports such contentions, the following very pertinent language: “When, therefore, appellants, after judgment, conveyed these premises to Henry Engelking, they conveyed all the rights which they had growing out of the ownership of this property. If nothing further was done by the city, Henry Engelking would have remained the owner they made him. As thereafter the city paid into court the amount of the judgment, the administratrix of Henry Engelking is entitled to such money. It was paid for his land, his title, his possession, not that of appellants.”

In the case of McDaniels v. Dickey, supra, the appeal was from a judgment entered after demurrers sustained without leave to amend. The complaint was silent as to the act under which the proceedings were instituted, and seems to have been fatally defective in failing to establish a right in plaintiff to the award. Respondent herein urges that the proceeding was instituted under the act of 1903, and points to admissions in the briefs on appeal. The complaint, however, did not so state, and we understand the rule to be that where a judgment is rendered after a demurrer sustained, the appellate court is confined to the allegations of the complaint in the consideration of the case (Biggart v. Lewis, 183 Cal. 660, 192 P. 437), and that an admission in the briefs on appeal cannot support a fact not alleged. Stone v. Imperial Water Co., 173 Cal. 39, 43, 159 P. 164. Nor did the Supreme Court act on such admission. It apparently did take judicial notice of the general codes on eminent domain, and said that under such codes the right to compensation would have accrued to respondents prior to their sale of the property “regardless of whether the accrual actually occurred at the entry of the interlocutory decree or upon the expiration of thirty days therefrom, during which period under section 1255a of the Code of Civil Procedure the condemnor would have the right to abandon the proceedings,” which seems to have left open the question raised here.

A petition for rehearing of the decision in Tom v. Eddy, supra, was denied by the District Court of Appeal and an application for a hearing thereof in the Supreme Court was denied by such court on May 28, 1934. While a denial of a hearing by the Supreme Court of a decision by a District Court of Appeal is not to be taken as an approval of the reasons assigned for the decision, it certainly is an express approval of the conclusion reached. In the cited case such conclusion was an affirmance of the judgment of nonsuit on the ground that under the evidence plaintiff was not the owner of the land at the time the compensation accrued. The plaintiff's evidence there showed that he obtained title to the property after the entry of the interlocutory decree in a condemnation proceeding under the Street Opening Act of 1903, fixing the award for damages to the property conveyed to him, without any reservation of said damages in the deed or otherwise, and showed that he was the owner of the land sought to be condemned at the time the award was paid to defendant. The right to abandon the proceedings, therefore, existed until such payment was made (section 14, Stats. 1903, pp. 376, 379, as amended); and giving effect to the rule that on a motion for nonsuit all inferences favorable to plaintiff that can be drawn from the evidence must be indulged, it would be inferred that the land was not taken until after such payment. That being the case, and appellant there being the owner of the land at that time, when the only substantial right to the award accrued, we do not believe the Supreme Court would have denied a hearing if it had seen any merit in the contentions made by appellant here; and we are forced to conclude that such court must have been of the opinion that the right to the award accrued and became personal prior to the vesting of the title to the land in the plaintiff there.

We see no merit in the contention that appellant was given notice of the bank's claim to the award because it had moved to be substituted as defendant in the proceeding in place of Khodigian and served on the city attorney of Glendale with its notice of motion a copy of the assignment under which it claimed. If appellant's contention is correct, the deed from Khodigian conveyed all his rights and there was nothing for the separate assignment to act on; and the Brown deed did likewise. The abandonment of the proceedings to be substituted would therefore seem to nullify any claim of notice. On the other hand, if the right to the award became personal at the date of the interlocutory decree, such right was transferred by Khodigian's assignment and passed to Brown and to the bank, and the city was not justified in paying the award to anyone except the bank or its assignee.

Judgment affirmed.

ARCHBALD, Justice pro tem.

We concur: STEPHENS, P. J.; CRAIL, J.