ALMADA ET AL v. SUPERIOR COURT IN AND FOR NAPA COUNTY

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District Court of Appeal, Third District, California.

ALMADA ET AL. v. SUPERIOR COURT IN AND FOR NAPA COUNTY.

Civ. 7031.

Decided: May 26, 1944

Rutherford, Rutherford & Rutherford, of Napa, for petitioners. Daniel K. York, Dist. Atty., of Napa, for respondent. Robert W. Kenny, Atty. Gen., and Perry H. Taft, Deputy Atty. Gen., and amicus curiae.

In the fall of 1942 the Civil Aeronautics Administration of the United States Department of Commerce notified the City of Napa and the County of Napa that it desired to establish an airport south of the City of Napa, to be used as a public municipal airport except as it might be used by the United States Government for war and emergency purposes, and that the government proposed to expend not less than $800,000 in the construction of said proposed airport. The said Civil Aeronautics Administration requested said city and county to secure the lands necessary for said airport and submitted with said request a description of the lands sought, in accordance with surveys made by said government agency. The City of Napa withdrew from all interest in the said proposed airport and the County of Napa proceeded with the matter, and on July 2, 1943, the Board of Supervisors of said county passed a resolution to the effect that the public interest required the establishing of a county airport for the passage, landing and taking–off of aircraft on, upon, over and across the 622.42 acres of land described in said resolution; that the use of all of said lands was necessary as a right of way for the passage, landing, and taking–off of aircraft and for county airport purposes; and authorizing the District Attorney to institute such action or actions “as are necessary to condemn said lands for a right of way for the passage, landing, and taking off of aircraft and for county airport purposes.”

On July 15, 1943, the County of Napa commenced in the Superior Court of said county an action to condemn 119.85 acres of land belonging to petitioner J. B. Almada “as a right of way for the passage, landing and taking–off of aircraft and for county airport purposes.” The land of petitioner was one of a number of contiguous parcels of land owned by different owners, all of said parcels sought to be condemned aggregating the total of 622.42 acres. On the same day that the complaint was filed the said Superior Court made an order entitled “Order Granting Plaintiff Right to Take Immediate Possession of Proposed Right of Way for the Passage, Landing and Taking off of Aircraft and for County Airport Purposes, and Fixing Damages.” After the filing of said order, the said Civil Aeronautics Administration entered into the possession of said land of petitioner and continues in possession thereof. Thereafter petitioner J. B. Almada filed in the said Superior Court a motion to set aside the said order granting immediate possession, which said motion was, after hearing, denied by said court. Petitioners then filed in this court a petition for a writ of certiorari, and an alternative writ was issued by this court commanding said Superior Court to certify to this court a transcript of the record and proceeding in said action in order that the same might be reviewed by this court and appropriate action taken thereon in relation thereto. A certified copy of the various pleadings, proceedings and orders filed in said Superior Court in said action have been filed herein and constitutes the record before this court.

Petitioners in their written memorandum of authorities and upon the oral argument made the following contentions:

“1st. That the land sought to be condemned was not a ‘right of way’, but was a large block of land sought for airport purposes.

“2nd. That the land sought to be condemned, to–wit: 622 acres, being for airport purposes, plaintiff was not entitled to immediate possession, or before judgment, or to have the block of land determined to be a ‘right of way’.

“3rd. That the Court did not have jurisdiction to make the order for immediate possession, and acted in excess of its jurisdiction because it did not have, or receive evidence respecting the value of the crops and pasturage on the land, and the interests of lessees therein.”

It is apparent at the outset that the principal question here involved is whether or not the land sought to be condemned can be considered a “right of way” as that term is used in section 14 of Article I of the Constitution of California, which provides:

“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, and no right of way or lands to be used for reservoir purposes shall be appropriated to the use of any corporation, except a municipal corporation or a county or the State or metropolitan water district, municipal utility district, municipal water district, drainage, irrigation, levee, reclamation or water conservation district, or similar public corporation until full compensation therefor be first made in money or ascertained and paid into court for the owner, irrespective of any benefits from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in a court of record, as shall be prescribed by law; provided, that in any proceeding in eminent domain brought by the State, or a county, or a municipal corporation, or metropolitan water district, municipal utility district, municipal water district, drainage, irrigation, leveee, reclamation or water conservation district, or similar public corporation, the aforesaid State or municipality or county or public corporation or district aforesaid may take immediate possession and use of any right of way or lands to be used for reservoir purposes, required for a public use whether the fee thereof or an easement therefor be sought upon first commencing eminent domain proceedings according to law in a court of competent jurisdiction and thereupon giving such security in the way of money deposited as the court in which such proceedings are pending may direct, and in such amounts as the court may determine to be reasonably adequate to secure to the owner of the property sought to be taken immediate payment of just compensation for such taking and any damage incident thereto, including damages sustained by reason of an adjudication that there is no necessity for taking the property, as soon as the same can be ascertained according to law. The court may, upon motion of any party to said eminent domain proceedings, after such notice to the other parties as the court may prescribe, alter the amount of such security so required in such proceedings.”

In 1918 said section 14 of Article I was amended by adding the portion commencing with the word “provided” and hereinbefore set forth. This amendment gave any of the political subdivisions therein mentioned the right in an eminent domain proceeding to “take immediate possession and use of any right of way * * * required for a public use” in accordance with the provisions of the amendment. The purpose of this amendment was well expressed in the following quotation from the official argument appearing in the election pamphlets:

“The principal purpose of this amendment is to permit the state, a county, a municipal corporation, or a drainage, irrigation, levee or reclamation district, when acquiring rights of way only, in eminent domain proceedings, to take possession upon commencing a condemnation suit and depositing in court such amount of cash money as is fixed by the court to secure the owners in the final payment of the compensation and damages fixed by the jury. If it should appear later that this amount is in adequate the court is empowered to increase it.

“Experience has shown that cities, in acquiring long stretches of rights of way for public purposes, are often held up by unreasonable and arbitrary owners who attempt to take advantage of a rule which requires that the city can not go into possession prior to a jury actually fixing the compensation to be paid.”

Petitioners concede that the County of Napa has a right to condemn the land in question for airport purposes under subdivision 20 of section 1238 of the Code of Civil Procedure, but petitioners contend most earnestly that said county was not entitled to immediate possession, or to possession before judgment, and that the Superior Court of Napa County exceeded its jurisdiction in making its order for immediate possession.

The District Attorney of Napa County on behalf of respondent, and the Attorney General, appearing as amicus curiae on behalf of respondent, argue that the term “right of way” should be liberally construed and that “land condemned for the passage, landing and taking–off of aircraft and for county airport purposes constitutes a right of way within the meaning of Art. I, Section 14.” They stress the undoubted importance of aerial travel and transportation and argue that airports and airport facilities are but necessary links in the chain of aerial highways and are but necessary adjuncts to aerial transportation. This argument is ingenious but not convincing. We believe that it must be held that when in 1918 the said section 14 of Article I was amended so as to provide for the taking of immediate possession of a “right of way,” the people intended the term “right of way” to have its usual and ordinary meaning.

Webster's New International Dictionary defines a right of way as “a right of passage over another person's land.” And this definition has been so universally incorporated into innumerable decisions that it may be said to be generally accepted. Sometimes it is a right of way for a road, sometimes for a ditch, sometimes for a canal, but whatever the particular right of way may be for, it is a right of passage over another person's land, or, in other words, an easement to use the land of another for such particular purpose. See 54 C.J. 824. As was said in the case of San Pedro, etc., R. Co. v. Pillsbury, 23 Cal.App. 675, at page 680, 139 P. 669, 671: “The term ‘right of way’ denotes the tenure by which land is held; it is descriptive of the easement right and not of the land to which it is affixed.”

In the early case of Kripp v. Curtis, 71 Cal. 62, at page 63, 11 P. 879, the court said:

“The privilege which one person, or particular description of persons, may have of passing over the land of another in some particular line is termed a right of way.

“It is an incorporeal hereditament, (3 Kent, Comm. 419; Washb. Easem. 215; Boyce v. Brown, 7 Barb. [N.Y.] 80,) an easement which does not necessarily divest the owner of the fee of the land, and, for all other purposes except the servitude or use as a way, he owns it, and may have his action for an injury to his residuary interests as fully as he would be entitled to were it all of his own. Gidney v. Earl, 12 Wend. [N.Y.] 98.”

Section 802 of the Civil Code provides: “The following land burdens, or servitudes upon land, may be granted and held, though not attached to land: * * * Five. The right of way.” And in Stockton Gas, etc., Co. v. San Joaquin County, 148 Cal. 313, at page 322, 83 P. 54, at page 58, 5 L.R.A., N.S., 174, 7 Ann.Cas. 511, it is said: “Under section 802 of the same Code, ‘the right of way’ is designated as among the land burdens which may be granted or held, although not attached to land. This right of way, an easement, is real property, and is distinctly and necessarily local in character, and situated in and upon land.”

In 9 Cal.Jur. it is said at page 964:

“The privilege which one person or particular description of persons may have of passing over the land of another in some particular line is termed a right of way. Technically, a right of way is merely an easement and does not necessarily divest the owner of the fee of the land although the term is often used indiscriminately to describe either the easement itself or the strip of land that is occupied for the easement.”

It is apparent from the complaint in the eminent domain proceeding, and from the maps of said proposed airport and of the land sought to be condemned therefor, that what is being sought by the County of Napa is a tract of land for county airport purposes. Under subdivision 2 of section 1238 of the Code of Civil Procedure the county had the undoubted right to condemn said land for such purpose. But we do not believe that merely by designating said land as “a right of way for the passage, landing and taking–off of aircraft” the County of Napa could transform said tract of land into a “right of way” within the meaning and intent of section 14 of Article I. Since the “immediate possession” amendment as to right of way was added to the constitution in 1918, said “immediate possession” clause has been further amended to include “lands to be used for reservoir purposes,” and it may well be that a still further amendment adding state, county and municipal airports would be highly desirable. However, such an amendment must come, if at all, in the manner provided for in the constitution, and not through strained judicial interpretation.

In view of the foregoing we conclude that the Superior Court of the County of Napa exceeded its jurisdiction in making its order of July 15, 1943, granting the County of Napa immediate possession of land of petitioner J. B. Almada and that said order should be annulled.

The order is annulled.

SCHOTTY, Justice pro tem.

ADAMS, P. J., and THOMPSON, J., concur.