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


Civ. 9461.

Decided: November 08, 1935

Overton, Lyman & Plumb, of Los Angeles, for appellant. Ray L. Chesebro, City Atty., Frederick Von Schrader, Asst. City Atty., and Arthur Loveland, Deputy City Atty., all of Los Angeles, for respondent.

This is an appeal from a judgment in favor of defendant and respondent in an action to recover damages resulting from a change of grade of a public street on which the property of appellant abutted. Briefly, the facts are as follows:

Appellant owns certain real property on West Eighth street in Los Angeles, improved with an apartment house. Respondent, city of Los Angeles, pursuant to the Improvement Act of 1911 (St. 1911, p. 730, as amended), lowered the grade in front of appellant's property, as a result of which the remodeling of appellant's building was required. Appellant filed a claim for the cost thereof with the board of public works and the city council; said claim was denied and the action for damages ensued.

The case was submitted upon stipulated facts. It was stipulated, among other things, that appellant was damaged in the amount claimed; had received no compensation therefor; and that no part of said premises had been condemned. Also, that said improvement proceedings were instituted and proceeded under the provisions of part 1 of the Improvement Act of 1911, approved April 7, 1911 (St. 1911, p. 730), and all acts amendatory thereof and supplementary thereto; that appellant made no objection or protest, in writing or otherwise, to or against the proposed grade or the change or modification thereof.

Any other facts hereinafter assumed or referred to are included in said stipulation.

The only issue involved is, Did appellant waive its right to damages by having failed to comply with the requirements of section 3, of part 1, of the Improvement Act of 1911? No issue was raised as to the procedural steps followed by respondent city of Los Angeles.

Respondent takes the position that appellant, having failed to appear before the city council and make “objection” as required by section 3, waived any claim for damages. It is conceded by appellant that, if such provision is one which appellant would legally be required to conform to, then appellant cannot recover.

Section 3 of part 1 (St. 1911, p. 733, as amended by St. 1929, p. 1652), abbreviated for convenience, is as follows:

“Before ordering any work done or improvement made which is authorized by this act, the city council shall pass a resolution of intention to do so. * * * Said resolution shall contain also a notice of the day, hour and place when and where any and all persons having any objections to the proposed work or improvement may appear before the legislative body and show cause why said proposed improvement should not be carried out in accordance with said resolution. * * *

“Any property owner whose property is to be assessed to pay the costs and expenses of the proposed improvement may at the time fixed in the resolution of intention for hearing of objections to the proposed work and improvement, appear before the city council and make objection to the proposed grade or proposed modification of grade. A failure to make objection at such time shall be deemed to be a waiver of all objections to the proposed grade or proposed change or modification of grade and shall operate as a bar to any claim for damages or any subsequent action looking to the prevention of the work or the recovery of damages on account of the performance of the work to such grade or changed grade.” (Italics added.) The foregoing sentence contains the only reference to damages in part 1 of the act.

The California Constitution, article 1, § 14, 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, * * * 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.”

The ordinance of intention for the improvement of West Eighth street was adopted April 10, 1930. The ordinance ordering the work to be done was adopted June 2, 1930. Appellant, on or about September 17, 1930, made demand upon the city of Los Angeles by filing with the city council and the board of public works a claim for damages, which claim was thereafter rejected and refused. The action for damages was filed April 25, 1931.

That a municipality is liable for such damages is well settled. Bigelow v. Ballerino, 111 Cal. 559, 44 P. 307, 309; Elliott v. County of Los Angeles, 183 Cal. 472, 191 P. 899; Duncan v. Ramish, 142 Cal. 686, 76 P. 661, 664; Rockridge Place Co. v. City of Oakland, 61 Cal.App. 791, 216 P. 64, 65.

Appellant's cause of action is not barred nor is its claim for damages waived because of the failure to “make objection” as required by section 3 of the improvement act in question.

Quoting from Sala v. City of Pasadena, 162 Cal. 714, 124 P. 539, 541, involving a like question, the court said: “It is well settled, however, that the state Legislature, in the matter of public improvements concerning which they are authorized to legislate, may require the property owner to assert his claim for compensation for the taking of his property or injury thereto before the commencement of the improvement, upon reasonable notice of the proposed taking or injury, may prescribe in what manner and within what time he shall do this, and further provide that his failure to assert a claim within the prescribed time shall operate as a waiver of all claims and constitute a bar to any subsequent action looking either to a prevention of the work or the making of compensation.” Also, quoting further: “While it is unquestionably competent to the Legislature to provide the several steps to be pursued in the assertion of his claim for compensation, the prescribed procedure must not destroy or substantially impair the right itself. A reasonable opportunity must be afforded him to claim and receive his damages; then if, being so afforded, it be not availed of, the statute may provide that such failure should constitute a bar to his claim.”

In an action for damages resulting from a change of grade, Rockridge Place Co. v. Oakland, supra, the court said, referring to a defense of waiver that, “waiver of a constitutional right ought not to be lightly inferred.” In Bigelow v. Ballerino, supra, the court declared, “But, where there is no such waiver, the property owner may rest secure in the protection which the constitution affords him that his property shall not be taken or damaged without compensation first made. It is not incumbent upon him to demand that the authorities shall respect his rights; the duty is theirs to work no unlawful invasion of them.”

The case at bar is similar to the case of Duncan v. Ramish, supra, wherein the court, referring to a street improvement act then in effect, held as follows: “It is clear that the nonpayment of any such damages does not affect the assessment to pay the cost of the work of grading, graveling, and curbing. The two are entirely distinct and independent. The street work act makes no provision for damages, nor does it refer thereto. The right to damages arises solely from the constitutional provision that private property cannot be damaged for public use without compensation having been first made to the owner. * * * If the owner desires to preserve his right to antecedent payment, he must sue to enjoin the work–not the collection of the assessment. But whether he does enjoin the work or not, the right to damages is an independent right against the city, and does not affect the power to tax the district for a different purpose, namely, to raise funds to pay the expenses of grading and improving the street.” (Italics added.)

There appears to be no logical reason why the rule with respect to the taking of property, as set forth in Curran v. Shattuck, 24 Cal. 427, should not apply with like effect in the case at bar. The Curran Case contains the following pertinent language: “The Board or officer must find the power to ascertain the compensation within the statute. A resort cannot be had for that purpose to implication. * * * If the statute has failed to provide, directly, the means or mode, it simply results that the compensation cannot be ascertained, and, therefore, the land cannot be taken for public use without the consent of the owner. The Board cannot insert into the statute provisions conferring further powers, however necessary they may be to carry into effect the supposed intention of the Legislature.”

Part 1 of the Improvement Act of 1911 (St. 1911, p. 730), as amended fails to provide, directly or indirectly, the means or mode, or the power, to ascertain the compensation to which appellant is entitled. It falls far short of affording a reasonable opportunity to claim and receive damages. As a matter of fact and of law, part 1 makes no provision whatever for the assessment to include damages. It provides that the city council may make the expenses of such work or improvement chargeable upon a district, which the said city council shall, in its resolution of intention, declare to be the district benefited by said work or improvement, and to be assessed to pay the costs and expenses thereof. Section 4, St. 1911, p. 733, as amended by St. 1923, p. 107. It provides that, when the city council shall determine that serial bonds shall be issued to represent the expenses of any work or improvement, it shall so declare in the resolution of intention to do said work. Section 59 and section 61 as amended by St. 1931, p. 1577. The words “work” and “improvement” as defined in section 79a, as added by St. 1913, p. 57, amended by St. 1927, p. 635, do not include damages. With the exception of the appearance of the word damages twice in section 3, the whole of part 1 is destitute of any reference to the subject.

The decisions hold, in effect, that when any legislation of the character herein considered undertakes to set up a procedure to be followed in claiming such damages or compensation, and also includes a bar or waiver for failure to comply with such procedure, then and in that case, it must further provide, but in accord with article 1, § 14, of the Constitution, for the manner and method of ascertaining and considering such claim and the settlement thereof. The inadequacy of part 1 on this subject is evident; consequently, the failure to comply with section 3 thereof does not operate to bar appellant from the right to an action for damages. The isolated reference to damages in section 3 is but an empty threat, a defiance of which cannot destroy a substantial right.

Snoffer v. City of Los Angeles (Cal. App.) 43 P.(2d) 852, relied on by respondent, is unavailing. The sufficiency of the ordinance of intention was the only question determined in the Snoffer Case; no attack was made on the adequacy of part 1 of the Improvement Act of 1911.

Part 2 of the Improvement Act of 1911 (St. 1911, p. 752, as amended) cannot supply the deficiencies of part 1; the two parts are separate and independent, so far as the question raised herein is concerned.

Appellant had the choice of two remedies; a suit to enjoin or an action for damages. Rockridge Place Co. v. Oakland; Elliott v. County of Los Angeles, supra.

By virtue of the stipulation between the parties, appellant was and is entitled to judgment.

The judgment is reversed and cause remanded.

I concur: YORK, J.

DORAN, Justice.

HOUSER, P. J., deeming himself disqualified, does not participate in the decision.

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