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


Civ. 14971.

Decided: April 12, 1946

John F. Poole and E. H. Delorey, both of Los Angeles, for appellants. Ray L. Chesebro, City Atty., Charles F. Reiche, Asst. City Atty., and Arthur William Green, Deputy City Atty., all of Los Angeles, for respondents.

Plaintiffs appeal from a judgment in their favor after trial before a jury of an action to recover damages as abutting property owners resulting from the erection of a viaduct on West First Street, Los Angeles.

The material facts are these:

Plaintiffs are the owners of two parcels of real property which are adjacent to the viaduct constructed on West First Street over Glendale Boulevard. On July 10, 1931, the city of Los Angeles filed a condemnation action which resulted in a judgment whereby a portion of the lots above mentioned was condemned. In such action plaintiffs were paid full compensation for the land taken together with severance damage to the remainder of their property.

In 1932 defendant city of Los Angeles installed in First Street and streets adjacent thereto stanchions and foundations for a proposed steel viaduct over Glendale Boulevard. This work was done in connection with the widening of First Street and Beverly Boulevard and consisted in the building of foundations in the street which were carried up to within two or three feet of the surface of the street, buried, and the street paved over them. The purpose was to have the foundations so that if a bridge was constructed in the future it would not be necessary to make large holes in the pavement. The actual construction of the viaduct commenced on September 1, 1940, and was completed in October, 1942. The viaduct was constructed by the Works Progress Administration under a contract with the defendant city. The jury awarded plaintiffs damages in the sum of $800.

There are presented for our determination seven questions which will be stated and answered hereunder seriatim:

First: Is the instant case (1) in eminent domain or (2) to recover damages by a property owner for injury to his property resulting from the erection in the street adjacent to his property of a viaduct?

It is the latter, and is predicated upon a provision in Article I, section 14 of the Constitution of the State of California which reads in part: ‘Private property shall not be * * * damaged for public use without just compensation having first been made to, or paid into court for, the owner * * *.’ It is to be noted that this cause of action is entirely separate and distinct from a cause of action in eminent domain. In a cause of action in eminent domain private property is taken for a public use, while in the instant case private property is not being taken for a public use but private property is damaged as a result of the public use to which a public thorough fare is subjected. (See Reardon v. City and County of San Francisco, 66 Cal. 492, 500 et seq., 6 P. 317, 56 Am.Rep. 109; Rose v. State of California, 19 Cal.2d 713, 719 et seq., 123 P.2d 505, 510 et seq.* )

Second: Did the trial court commit prejudicial error in refusing to permit plaintiffs to prove the market value of their property in 1932?

This question must be answered in the negative. Plaintiffs alleged in their complaint that the construction of the viaduct ‘commenced on or about September 1, 1940, and was not completed until October, 1942’; they further alleged that in 1932 defendant had threatened to construct the viaduct in question and that as the result of such threats their property was damaged. The law is settled that plaintiffs are not entitled to recover any damages by reason of the depreciation of market value in property due to a proposed improvement by a municipality. (Atchison, Topeka & Santa Fe R. Co. v. Southern Pac. Co., 13 Cal.App.2d 505, 517, 57 P.2d 575.) In the present case the trial court properly confined the evidence to the market value of plaintiffs' property on or about September 1, 1940, the date it was alleged that the construction of the viaduct was commenced, and to October 3, 1942, and date it was alleged the viaduct was completed. Under the rule of law above stated it was immaterial whether or not the market value of plaintiffs' property was depreciated on or about 1932 due to the fact that it was known that the city contemplated the erection of a viaduct sometime in the future.

Third: Did the trial court err in refusing to permit plaintiffs to prove damages to their property resulting from (a) blocking streets in front of and surrounding their property during the time the viaduct was being erected, (b) placing of material on their property during the construction of the viaduct and, (c) unreasonable delay in the construction of the viaduct?

This question must also be answered in the negative. The city of Los Angeles is not liable for any of said items of alleged damage. (a) A municipality is not liable if a private contractor blocks streets and interferes with ingress to and egress from private property during the time an improvement is being made. (McCray v. Manning, 22 Cal.App. 25, 28, 133 P. 17.) (b) Neither is a city liable for placing construction materials on private property abutting an improvement, if the municipality does not by contract or otherwise sanction the act of the contractor in so doing. (c) There is nothing in the evidence or in any offer of proof to indicate that there was an unreasonable delay in the construction of the work or to negative the presumption of the regularity of official action.

Fourth: Did the trial court err in excluding proffered testimony of plaintiffs as to the price paid by other public bodies for property in the vicinity of the plaintiffs?

This question must be answered in the negative. The rule is settled in California that evidence as to the price paid for land adjacent to a parcel which is being condemned is not admissible on direct examination but may be admitted on cross-examination to test the accuracy of the opinion of the witness who has testified as to the value of the condemned property. (Spring Valley Water-Works v. Drinkhouse, 92 Cal. 528, 532, 28 P. 681.) In the present case plaintiff was offering in his own behalf to testify as to prices paid by the Bureau of Water and Power of the City of Los Angeles, State Board of Education and the State of California for property located in the vicinity of his land. He was not offering to testify as to the value of his own land, therefore the objection was properly sustained.

Fifth: Did the trial court err in instructing the jury as follows:

a) ‘You are instructed that defendant under and pursuant to its police power has a right to build and construct a viaduct or bridge within its streets for the health, welfare and safety of the traveling public.’

b) ‘You are instructed that police regulations which are designed to subserve the public health, welfare and safety and affect all persons alike within the sphere of their operations constitute legitimate exercise of the police power of a municipality and such regulations will not be construed to be unlawful when they are generally admitted to be essential to the safety and well-being of society and when sanctioned by usage and necessity.’

c) ‘Without regard to any such plans the owners of the real property involved in this case are entitled to the difference in market value of their properties immediately before and immediately after the construction of the viaduct or bridge, nothing more, nothing less.’

This question must be answered in the negative. In paragraph six of plaintiffs' complaint it was alleged: ‘That on or about the 3rd day of October, 1942, the defendant herein wrongfully and against the will of plaintiffs and without legal authority, by and through its several contractors, officers, agents, servants and employees, entered in and upon said First Street and caused to be erected and constructed for a public use, to wit: for street purposes and public travel, a bridge and viaduct in, upon and along said First Street and Beverly Boulevard, in front of and in close proximity to the property described in paragraph II hereof of the complaint herein; that said construction was commenced on or about the 1st day of August, 1940, and was not completed until October 3, 1942; that said bridges and viaduct as constructed upon, along and through First Street between Edgeware Road and Lucas Avenue and Beverly Boulevard from Lucas Avenue to Witmer Street, and more particularly in front of and adjacent to the plaintiffs' property aforesaid, is some nine hundred feet (900) in length, fifty (50) feet in width, and thirty-five (35) feet in height.’ Responsive to the foregoing allegations are the trial court's instructions as set forth above. Each of the instructions, in view of the allegations in the complaint, constituted accurate statements of the propositions of law involved therein.

Sixth: Did the trial court err in not allowing plaintiffs interest on the amount of their damages from the date of the commencement of work upon the viaduct?

This question must likewise be answered in the negative. In an action, as in the present case, to recover damages against a city for injury resulting from a change in the use of a street the claim being for unliquidated damages, does not draw interest. (McNutt v. City of Los Angeles, 187 Cal. 245, 259, 201 P. 592.)

Seventh: Did the trial court err in granting defendant's motion to strike plaintiffs' cost bill?

This question must be answered in the negative. The law is settled that where the judgment in the superior court is for an amount which could have been awarded by the municipal court the plaintiff is not entitled to recover his costs. (Beckjord v. Slusher, 22 Cal.App.2d 678, 683, 72 P.2d 563.) In the present case the action could have been filed in the municipal court, and the judgment being for less than $2000 plaintiffs were not entitled to recover their costs.

Collier v. Merced Irr. Dist., 213 Cal. 554, 572, 2 P.2d 790, Rose v. State of California, 19 Cal.2d 713, 720, 123 P.2d 505, and City of Oakland v. Pacific Coast Lumber and Mill Co., 172 Cal. 332, 334, 156 P. 468, Ann.Cas. 1917E, 259, relied on by plaintiffs, are not here in point for the reason that each of the cases mentioned is factually distinguishable from the instant case. Therefore plaintiffs were entitled to recover their costs in such cases.

Since no error appears in the record the judgment is affirmed.


FOOTNOTE.  The phrase ‘eminent domain’ appearing in the last paragraph on page 719 of 19 Cal.2d in Rose v. State of California should have been deleted from the opinion since such phrase is not a part of Article I, section 14 of the Constitution of the State of California. The blackfaced heads throughout the text of the Constitution of the State of California have been inserted to assist the readers by the publishers of the Constitution of the State of California.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.