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


Civ. 8250.

Decided: June 26, 1934

Bernard Brennan, Aubrey N. Irwin, and A. L. Lawson, all of Glendale, for appellant. Freston & Files, 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, he deeded said lots to one Brown, and by separate assignment, “not recorded,” transferred his interest in said award to Brown, who was an officer of and acting in behalf of the bank to whose rights plaintiff herein succeeded, and who assigned said award to plaintiff's predecessor February 28, 1927. April 29, 1927, plaintiff's predecessor filed its petition in said condemnation suit praying that it be substituted as a party defendant in the place of Khodigian and that the award to him be paid to such bank. Duplicate originals of said assignment were filed with said petition, and copies of the petition and assignment were served on the city attorney of Glendale. Such petition was never heard or considered by the court. By mesne conveyances title to said lots was finally vested in one Jewett, May 26, 1927. All of such deeds included the portion sought to be condemned for street purposes without any exception thereof, but each conveyance was “subject to conditions, restrictions, reservations, rights, rights of way and easements of record.” In due time an assessment was levied by the city against the portions of the lots not sought to be taken under the provisions of the act, amounting to $3,202.03. Jewett, who owned the property at the 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 for offset, and Jewett paid the difference in cash, whereupon said street superintendent filed a duplicate satisfaction of judgment and demand with the clerk of the superior court. The superintendent had no knowledge of said assignment prior to the time the assessment was paid and satisfied, nor any notice except “such as might be implied by law.” April 18, 1928, final judgment was made and entered in said condemnation suit confirming in all respects the interlocutory judgment as to said lots and condemning said frontage for street purposes. Defendant did not enter into possession of the property until after said final judgment. A claim was filed by plaintiff's predecessor with defendant for the amount of the award, which was denied.

The facts above mentioned were stipulated and judgment was entered in favor of plaintiff for said sum, with interest from the date the award was offset and paid, from which judgment defendant has appealed.

The principal question involved is whether under the stipulated facts the assignment of the award after entry of the interlocutory judgment carried the right to it as against subsequent purchasers of the property under deeds not expressly reserving such right and without notice of any claim of such right.

The very late case of McDaniels v. Dickey (Cal. Sup.) 25 P.(2d) 404, 405, restates the law applicable here in the following words: “The right to compensation is a personal one which does not run with the land, and does not pass to a vendee of the land after the right accrues, in the absence of an express agreement to that effect. Where the right accrues after a conveyance, a vendee or optionee is entitled to compensation for the damage he has suffered.” (Italics ours.) The question to be determined here is the same as in that case, viz., whether the right to the award accrued prior to the deed to Jewett. The conveyance in such case was made more than thirty days after the entry of the interlocutory judgment. The Supreme Court there, following the case of Vallejo, etc., R. R. Co. v. Reed Orchard Co., 177 Cal. 249, 251, 170 P. 426 (which it is to be noted was a proceeding in eminent domain under sections 1237-1264 of the Code of Civil Procedure), determined that “the right to compensation accrued to respondents prior to their sale of the property to the appellant (regardless of whether the accrual actually occurred at the entry of the interlocutory judgment or upon the expiration of the 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).” The opinion does not show under what act the proceedings involved there were taken, but we must assume that it was some act to which sections 1255a and 1251, Code of Civil Procedure, were applicable. That the general provisions of the Code relating to eminent domain do not apply where the Street Opening Act of 1903 has contrary or inconsistent provisions is well settled. City of Los Angeles v. Agardy (Cal. Sup.) 33 P.(2d) 834; City of Los Angeles v. Abbott, 217 Cal. 187, 17 P.(2d) 993; Frank v. Maguire, 201 Cal. 414, 257 P. 515.

Turning to the act involved here, we find that section 31 thereof (St. 1903, p. 385) provides that awards allowed under the act shall be paid when there is sufficient money in the special assessment fund to pay them, and section 14 (St. 1903, p. 379, § 14), that the city council may “at any time prior to the payment of the compensation awarded the defendants, abandon the proceedings, by ordinance, and cause the said action to be dismissed, without prejudice.” Under the principle of law laid down in the case of McDaniels v. Dickey, supra, it would seem that under such act and the facts of this case no right to the award could possibly have arisen that would separate it from the land until long after plaintiff's predecessor had parted with the title to the property without reserving the same to itself, if and when made.

Considering the deeds of conveyance and the fact that plaintiff's predecessor, prior to its conveyance, abandoned its attempt to be substituted as plaintiff in the case and to have the award paid to it, and the fact that it obtained no greater right by the separate assignment of the award than it had under Khodigian's deed, and in view of the further fact that its right to the award had not yet accrued, we fail to see how such attempted substitution could constitute notice to any one of a claim that the award had been separated from the land itself, against which special benefits would be assessed to pay the cost of condemnation. Nor does respondent make such a claim, resting as it does on the proposition that its right to the award was so separated by the interlocutory judgment itself and so became a personal right instead of one pertinent to the land. In our opinion, there is no merit in such claim.

Undoubtedly, if deposit of security had been made and possession taken at the commencement of the proceedings, upon the entry of the interlocutory judgment, the right to the award would then have accrued and the situation would have been different, and the separate assignment would then have been necessary to take the right of Khodigian.

Judgment reversed, with directions to the trial court to enter judgment in favor of defendant.

ARCHBALD, Justice pro tem.

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

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