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District Court of Appeal, Second District, Division 1, California.


Civ. 7804.

Decided: February 13, 1934

R. C. Gortner, of Beverly Hills, for appellant. Erwin P. Werner, City Atty., of Los Angeles, for respondent.

This is a condemnation proceeding in which plaintiff proposes to take from appellant a strip of land for the purpose of widening Santa Monica boulevard, under the Street Opening Act of 1903. The court approved the award of the referees to appellant of $8,614, and entered interlocutory judgment accordingly. Defendant appeals from said interlocutory judgment upon the ground that the amount of the award was not in conformity with the statute, which requires that the court shall find separately “the value of each parcel of property sought to be condemned,” and that the law entitles the owner to that value.

Appellant owns approximately 38.6 acres of land, bounded on the south by Santa Monica boulevard, and about 800 feet in length along that highway, and extending about 2,000 feet to the north. The width of the strip of land which is to be taken varies from 33.5 feet at the west end to 33.58 at the east end of the strip. There appears to be no direct evidence of the value which this parcel would have if separately owned, and thus unconnected with the remainder of the tract. This results from the tacit assumption on both sides that a piece of land of such slight depth could not be put to any very valuable use. It seems to be conceded that, since the strip to be taken is part of a larger tract under a single ownership, the market value of the strip in question must be ascertained under the operation of some reasonable process whereby its value when considered as part of the entire tract may be ascertained. According to the testimony of witnesses, the tract does not derive its value equally from all parts thereof. The acreage remote from Santa Monica boulevard is of less value than that which is nearer to the boulevard frontage. The land west of this tract (separated therefrom by Selby avenue) has been subdivided into lots having a depth of about 107 feet and running to an alley. Appellant's tract of land is susceptible to similar subdivision. Taking these facts into consideration, and as an aid toward establishment of a valuation for the entire tract, the witnesses, duly qualified as experts on value, gave to the area included in the 800–foot frontage with a depth of 107 feet, an estimated value of $1.64 per square foot. To the remainder of the tract they gave a value of $11,000 per acre, or approximately 25 cents per square foot. Apparently the referees added together the values thus estimated, and thus determined the value of the entire tract, reduced first to a valuation per acre and then to a valuation per square foot. In this manner their valuation of the strip to be taken was made by considering it as part of the entire 38–acre tract, without giving a controlling force to the value given to the strip when considered as part of the imagined separate parcel having a depth of only 107 feet, and likewise without considering it as an independent wholly separate parcel. Having arrived at their conclusion in the manner above indicated, the witnesses Butterworth and Crippen (who were two of the three referees) testified that the amount of the award as recommended by them is the fair and reasonable value of the property taken.

When private property is taken by condemnation for a public use, the owner is entitled to receive “just compensation.” The statute requires that there be found separately “the value of each parcel of property sought to be condemned.” Street Opening Act of 1903, § 10, as amended, Deering's Gen. Laws, 1931 Ed., Act 8198. It is contended by appellant that the method adopted by the referees and by the court for ascertaining the value of the parcel to be taken is unsound, and that the value thereof has not been ascertained in accordance with the requirements of the law. The gist of the argument seems to be that, as an element of their computation, the referees have charged against the owner the increased value of the new frontage of appellant's property on the street when widened. This, appellant claims, was an assessment of benefits, which the law does not authorize. But we think that this argument is itself unsound. The line between the two portions of the tract was arbitrarily chosen. This was a purely mental operation, used by the witnesses for the purpose of analysis of their problem. The ultimate question before them, and the only question which they were authorized to answer, was: What is the value of this parcel of land, as it lies before us, being part of an undivided tract under single ownership? We have their answer, which was accepted by the trial court. It does not appear that any rule or principle of law has been violated by the finding of the court, or by the referees and witnesses in the method by which they made their estimate and formed their judgment concerning the value of the property.

The judgment is affirmed.

I dissent. In condemning land either for the purpose of the opening or the widening of a street, ordinarily the final compensation to be awarded to the owner of property taken should be reached from a consideration of three principal elements; that is to say, the market value of the land taken, to which may be added the amount of damage suffered by the owner to the remainder, if any, of his land by reason of its severance from the part thereof actually taken, and from the sum of such two elements of damage an amount of money assessed as benefits, if any, which will accrue to the property not taken, may be deducted.

In the instant matter neither of the last two elements is involved. The sole question for determination is limited to the first proposition; that is, to an ascertainment of what was the market value of the property actually taken, without reference either to any damages, or to any benefits, which might or did result to the property not taken. In other words, measured by well–established rules of procedure and practice, as far as the present inquiry is concerned, it is limited to a determination of the market value of the property taken.

To my mind, whether to the rear of, abutting upon, or adjoining the property taken, the owner thereof also owned 38 acres, or 10,000 acres, which was of comparatively lesser value than that of the property that was taken, should not be given consideration in arriving at the market value of the 33–foot strip that was taken from his frontage on the street. I am of the opinion that to do otherwise is to depart from the enforcement of the rule respecting compensation legally to be awarded.

In effect, the procedure pursued by the lower court, and proposed by this court to be affirmed as correct, as between the respective owners of adjacent properties, is to penalize one owner because he owns more property than does his next door neighbor. As an example of what I have in mind, let it be supposed that each of two men owns a lot that fronts on a designated street; that one of such lots adjoins the other; that one of such lots has a depth of 107 feet, and that the other has a depth of 250 feet. The method employed by the lower court perhaps admits of the result that because the owner of the one lot has more property than has the owner of the other lot, or, concretely, because the depth of the one lot is greater than the depth of the other, the owner of the lot having the greater area is not entitled to receive as great a compensation for the 33 feet taken from the front of his lot as is the owner of the other lot, with its smaller area, for the identical quantity of land taken from him. It is plain that, if such a measure of market value of land taken for the opening or the widening of a street is to prevail, a differential in compensation to be awarded respective owners of lots fronting on a proposed street–widening improvement will obtain, to be ascertained in amount, not by or through the actual value of the property taken, but dependent upon the varying depths of each of the affected lots. In other words, should the front ten feet of three adjoining lots, of equal width, each owned by a separate individual, be the subject of a condemnation proceeding, one of such lots having a depth of 100 feet, the second, of 110 feet, the third, of 120 feet, by the operation of the proposed system, as compensation for the 10 feet taken, the owner of the first lot would receive one–tenth of the value of his entire lot, the owner of the second, one–eleventh, and the owner of the third one–twelfth. From which illustration it becomes clear that the method of determining compensation adopted by the lower court will result, not as the law requires, in compensation being made on a basis of the market value of the property taken, but on a basis either of what amount of damage has been suffered or sustained by the owner of the property, or what the property taken actually was worth to its owner.

But specifically, and as affecting solely the facts in the instant case, the proponents for the proposed system assert that, notwithstanding the character of the illustrated lots respectively is identical one with the other back to a depth of 107 feet, the compensation or market value to be awarded for the 33 feet taken should be measured by its value, reached by an average of the square foot value of the entire tract. And so, as applied to the two lots hereinbefore instanced, if for a depth of 107 feet the 250–foot depth lot were identical with the other lot, but for the remainder of its depth its character is such that it is absolutely worthless, the necessary result in an award of compensation for the market value of the 33 feet taken off the front would be that the owner of the 250–foot depth lot would receive much less than that which the owner of the 107–foot depth lot would receive. Applying the principle to an enlarged area, supposing that, instead of the 38–acre tract that was herein affected, the tract had an area of 10,000 acres, but that, as hereinbefore assumed in the other illustration, back and beyond the depth of 107 feet the remainder of the 10,000–acre tract of land was practically worthless, would it be “just” compensation to the owner of the 10,000–acre tract to pay to him for the area of the 33 feet taken off the street frontage of his property at the rate of the average of the square foot value of the area of the 10,000 acres of nearly worthless land, and which in fact would be but a very small fraction of the amount that was awarded to his next door neighbor for his 33 feet that was taken from the front of a single lot with a depth of 107 feet?

But let a reverse of the foregoing situation be considered: Supposing that both the 33–foot strip proposed to be taken for street purposes and the remainder of the 107–foot lot lay in a gulch averaging 250 feet in depth and having very steep sides which were covered with huge boulders and other undesirable objects, so that intrinsically, neither the 33–foot strip nor the remainder of the lot was of any value whatsoever. But over and beyond the gulch the remainder of the 38 acres, or the 10,000 acres, as the case might be, was quite valuable; let us say of the same value as was testified by the experts in the instant case, to wit, $11,000 per acre. Many times it has been said that “it is a poor rule that won't work both ways.” Therefore, in such conditions, in arriving at the fair “market” value of the 33–foot strip, would it be conceded by the proponents of the rule that its “market” value would be calculated on the average value per square foot of the entire 38–acre or the 10,000–acre tract, to wit, at approximately $11,000 per acre?

In time of war, even in traversing friendly or allied territory, in order to provide food for soldiers, the officer in charge of a detachment thereof may be obliged to commandeer supplies. As an example existing under such conditions, let us say that from one farmer who owned exactly 100 first–class sheep his entire flock was taken; from another farmer, who owned 5,000 sheep, nearly all of which were sick, lean, and scrawny, an equal number of 100 first–class sheep were selected and taken. When the time for compensation for the sheep arrived, the method employed was like that adopted by the trial court in the instant action; that is to say, the farmer who owned 100 sheep only was paid at the rate of $3 per head; but for the asserted reason that the 4,900 remaining sheep that were the property of the second farmer were in an unfit condition and consequently were worth but $1 per head, the average worth of the sheep of the entire flock was but $1.04 per head, and that was the compensation that was made for the 100 first–class sheep that were taken. Would any right–minded person contend that such a system produced just results?

Supposing that before the condemnation action herein was commenced the owner of this 38–acre tract had subdivided his 800 feet of frontage on the street into lots each having a width of 50 feet, to a depth of 107 feet, but had left the remainder of the 38 acres unsubdivided. In such circumstances, would it be contended that, because he also was the owner of an acreage that abutted against or upon the rear of the subdivided lots that had a frontage on the street, he should properly be awarded a less compensation for the 33 feet taken for street purposes than should his next door neighbor? In other words, would the fact that the owner of the 38–acre tract had subdivided his frontage on the street affect the amount of compensation to which he would be entitled?

In order to sell his land, or any part thereof, the law may not necessarily compel an owner to subdivide it into lots and record a map of his subdivision. Supposing that, without an actual subdivision of record, the owner of the 38–acre tract had sold by “metes and bounds” description all but 50 feet of his frontage on the street back to a depth of 107 feet, would it still be contended that because the rear of his remaining lot abutted upon what was left of his 38–acre tract, the compensation to be awarded to him should be affected by the value of the remainder of the 38–acre tract?

The law says that the owner of condemned property shall be compensated for the market value thereof. To my mind, it does not say, nor does it contemplate, that such market value shall be in any way affected by the fact of whether or not he owns other property (irrespective of its value) that abuts upon, or is adjacent to, land that is taken from him. In a condemnation proceeding, as compensation for a parcel of an affected lot, to pay one price to the owner thereof, and at the same time, for an identical parcel, to pay a lesser price to the owner of an adjoining likewise affected lot, does not appeal as being “even–handed justice.”

CONREY, Presiding Justice.

I concur: YORK, J.