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

PEOPLE v. OCEAN SHORE R. R., Inc., et al.

Civ. 12838.

Decided: May 20, 1947

Robert W. Kenny, Atty. Gen., and C. C. Carleton, Holloway Jones, Geo. C. Hadley and Jack M. Howard, all of San Francisco, for appellants. Keys and Erskine, A. P. Black, and Edwin H. Williams, all of San Francisco, and Nichols & Richard, of Oakland, for respondents.

The People of the State commenced this action in eminent domain to condemn for state highway purposes a 60 foot strip approximately 3 1/313 miles long, from Junipero Serra Boulevard, San Francisco, on the north to Edgemar on the south, which had formed part of a railroad right of way of defendants Ocean Shore Railroad, Inc., and Ocean Shore Railroad Company, hereinafter called defendants, plus an additional parcel of land acquired by the same defendants between the right of way and the ocean. The proceeding, commenced in San Mateo County, was transferred to Alameda County on motion of defendant Ocean Shore Railroad, Inc.; as to the other, minor, defendants it remained and is still pending in San Mateo County. People v. Ocean Shore Railroad, 24 Cal.App.2d 420, 75 P.2d 560. Defendants claimed severance damage, as the 3 1/313 miles taken allegedly formed part of a 17 1/212 mile right of way continuing southward through Sharp Park to the Quillici property in San Mateo County. The court tried the issues of ownership and the basis for severance damage before impaneling a jury to try the issue of compensation. The court found and instructed the jury that defendants owned the property under condemnation in fee and that the property was a part of a larger parcel extending to the south to Sharp Park; but that it did not form a continuous parcel with the alleged right of way south of Sharp Park as Sharp Park constituted a complete separation.

The jury rendered a verdict of $485,190 for the property to be taken and $30,000 severance damages. On motion of the plaintiff the court granted a new trial solely on the issue of compensation. Plaintiff appeals from the judgment in so far as defendants are adjudged owners of all the 3 1/313 mile strip under condemnation and entitled to severance damages as to the portions of the right of way north of Sharp Park; defendants appeal from the judgment in so far as it precludes severance damages to the alleged right of way south of Sharp Park and from the order granting a new trial on the issue of compensation.

The Ocean Shore Railway Company, predecessor of defendants, was organized in 1904–1905 for the construction and operation of a railway along the coast from Santa Cruz to San Francisco. Two sections—one from San Francisco to Tunitas in San Mateo County (38 miles) and another from Swanton to Santa Cruz (15.5 miles) were completed and were operated from 1907 to 1920. There always remained a gap of 26 miles. In 1911, after a receivership, assets and operation were transferred to a new California corporation, defendant Ocean Shore Railroad Company, which continued operations as a public utility, but was unable to operate without loss and in 1920 applied to the California Railroad Commission for permission to permanently abandon operations. Application as to both divisions of the railroad was granted. It also filed with the Secretary of State a certificate of diminution of stock stating that it was no longer a public utility. After that the Ocean Shore Railroad Company took up and sold all tracks, ties, telephone lines, etc., sold rolling stock, railroad equipment, terminal facilities and made some seventeen distributions to stockholders. The application for distribution stated that the corporation was in liquidation and did not propose to engage in other business than that incidental to liquidation.

In 1934 the defendant Ocean Shore Railroad Company caused the incorporation of the defendant Ocean Shore Railroad, Inc., a Nevada corporation, and deeded its assets to it in return for the new company's stock. Therefore this action was commenced against the Ocean Shore Railroad, Inc., but on June 25, 1936, subsequent to the commencement of the action the property was deeded back to the Ocean Shore Railroad Company and interest in the award was assigned to it. The Ocean Shore Railroad Company was then brought in as a defendant in this suit and answered. It is now the only one of the two companies interested in the award. The above facts are undisputed.

Defendants also refer to the following facts, denied or criticized by plaintiff: After the cessation of operations the company listed its roadbed in San Mateo County with the assessor of San Mateo County and paid real estate taxes on it. As will be pointed out later plaintiff disputes that the description provided for assessment mentions all the right of way under condemnation, or the part through Sharp Park relevant to severance damages.

Defendants also contend that a group of men headed by one Selah Chamberlain in 1929 acquired an option from defendants on the right of way and stock of defendants which was renewed or changed several times and at last exercised in November 1933. This group seems also to have perfected title to part of the right of way by acquiring supplementary deeds or quitclaim deeds and even to have done some restoration work on the roadbed just before these proceedings were commenced in 1935. With respect to the option of the Chamberlain group and related matters much evidence was taken, and arguments were had in the absence of the jury for the purpose of deciding whether the option disclosing a price of one hundred thousand dollars for all the 16 or 20 miles right of way and the offer to sell the same for the same price to the Joint Highway District in case the option should not be exercised, should be permitted to go to the jury. The transcript does not show that this evidence went to the jury, or what ruling was made on the offer of proof.

With respect to the law plaintiff concedes defendants' ownership of the right of way in so far as title in the nature of a fee was acquired by purchase and grant, but argues that where no such title was shown and defendants must base their right on dedication, prescription or adverse possession such rights were lost since 1920 by nonuse for more than the statutory period, and by abandonment of the use of the right of way for railway purposes and of defendants' position as a public utility. These questions come up both in plaintiff's appeal in so far as plaintiff denies defendants' title to certain specific parts of the right of way to which the trial judge has recognized their title and in defendants' appeal with respect to the lower court's decision that defendants were not entitled to a right of way through Sharp Park.

In as much as the parties appear herein both as appellants and as respondents we will refer to the parties throughout as plaintiff and defendants. We will first consider the appeal of the plaintiff from that portion of the judgment holding that defendants were owners of all the 3 1/313 mile strip subject to condemnation and were entitled to severance damages as to the right of way north of Sharp Park relating to the so-called Mary Tobin property.

But first it is necessary to dispose of defendants' objections to the procedure under which the court, in trying the issues of ownership, also determined the basis for severance damages before submitting the issue of compensation to the jury. The point is raised for the first time in the final brief filed after the cause had been submitted for decision. It is based on the statement found in Rose v. State of California, 19 Cal.2d 713, 729, 123 P.2d 505, 515, where the court said that the question whether the right of access to a portion of a public street under condemnation was substantially impaired was a matter ‘for the trier of the facts.’ There was no question of the propriety of the court to determine, in the absence of the jury, the question whether severance damages were allowable. The facts on which the claim of a right of access was based were conceded. The precise question involved here as to how the existence of the right upon which the claim for damages is based should be determined was raised in People v. Ricciardi, 23 Cal.2d 390, 402, 144 P.2d 799, 805, where the court said:

‘When the proceeding comes on for hearing all issues except the sole issue relating to compensation are to be tried by the court, and if the court does not make special findings on those issues its findings thereon are implicit in the verdict awarding compensation. Vallejo & N. R. R. Co. v. Reed Orchard Co., 169 Cal. 545, 556, 147 P. 238; Oakland v. Pacific Coast Lumber & Mill Co., supra, 171 Cal. 392, at page 397, 153 P. 705. In the Vallejo case, 169 Cal. at page 556, 147 P. 238 the court said: ‘A condemnation suit is a special proceeding. It is not included in the classes mentioned in section 592 (Code of Civil Procedure) in which a jury is required. That section is expressly made applicable to condemnation suits. Code CivlProc. § 1256. It follows that, except those relating to compensation, the issues of fact in a condemnation suit, are to be tried by the court, and that if the court submits them to a jury it is nevertheless required to make findings either by adopting the verdict thereon or by making findings in its own language.’ In the Oakland case the point was urged that the question whether the parcels of land involved constituted one parcel within the meaning of section 1248 of the Code of Civil Procedure must be submitted to the jury for determination. The court said 171 Cal. at page 397, 153 P.2d 705: ‘But neither the state nor any of its mandatories nor any other person or corporation, exercising the power of eminent domain, is compelled to submit to the determination of a jury every question of fact (Vallejo & N. R. R. Co. v. Reed Orchard Co., [169 Cal. 545] (147 P. 238), and this question of fact (namely, whether or not, the probative facts being without controversy, the resultant fact establishes the existence of a parcel from which a portion is to be taken) is essentially a question of law for the determination of the court. It is only the ‘compensation,’ the ‘award,’ which our Constitution declares shall be found and fixed by a jury. All other questions of fact, or of mixed fact and law, are to be tried as in many other jurisdictions they are tried, without reference to a jury. Const., art. I, § 14.' The law declared in these two cases has been followed in this state without deviation.'

Particular emphasis should be laid on the succeeding paragraph of the opinion because it is a complete answer to the contention made here: ‘It was therefore within the province of the trial court and not the jury to pass upon the question whether under the facts presented, the defendants' right of access will be substantially impaired. If it will be so impaired the extent of the impairment is for the jury to determine. This is but another way of saying that the trial court and not the jury must decide whether in the particular case there will be an actionable interference with the defendants' right of access. This the trial court did when it ruled on the admission of evidence and in its instructions to the jury.’

It should also be noted that the precise procedure now criticized was agreed to by all parties at the opening of the hearing. Beofre the jury was summoned and while the trial judge sought an agreement as to how these questions were to be heard counsel for defendants stated that ‘* * * as I understand the law, * * * Your Honor will pass upon the question of whether or not we are sufficiently contiguous in the different pieces of land involved that have been established to determine whether or not the question should go to the jury on severance damage. * * *’ And it was agreed that where there was any question of title ownership the court should determine it as a question of law in the absence of the jury. The court then addressed to counsel this inquiry: ‘Now, second, is there any question as to—on the issue of severance damage as to whether there is land that is part of the whole that is lost, not taken’? Counsel for defendants replied that such was a question of law for the trial judge alone to decide.

If the procedure was irregular as now claimed, it is a question which is not open for discussion because of defendants' acquiescence in the first instance (2 Cal.Jur. p. 849) and their failure to raise it within the proper time.

Plaintiff's original attack is made on the ruling relating to the Gillogley property. This is a small part of parcel No. 5 second described in te complaint and alleged to be owned by defendants Ocean Shore Railroad, Inc., and John A. Macready. Plaintiff now contends that a .73 acre part of this 12.92 acres parcel of the right of way, deeded by Unger, Kaufmann, Thurston et al. to Ocean Shore Railway protruded eastward into the land of Gillogley, the owner of the land to the east of that of the grantors. Though the issue is really one of fact we will state the respective arguments for the purpose of clarity.

Plaintiff argues that defendants failed to prove record title, deed or conveyance as to this part, whereas the State has acquired record title in the Gillogley property in general; therefore the trial court should have excluded this part from defendants' interest and should have determined its area.

As against this defendants argue: Plaintiff's contention is contrary to the allegations of its complaint, particularly to the allegation ‘that the defendants named in the complaint are the only persons interested in said respective parcels of land.’ John A. Macready's title from Unger, Kaufmann, Thurston et al. excludes defendants' 12.92 acre strip transferred earlier, and Macready does not claim any interest in it. Therefore, it is argued, that by plaintiff's own allegations defendants are the owners of the total 12.92 acres strip. City of San Jose v. Freyschlag, 56 Cal. 8. Plaintiff, however, argues that section 1244, Code of Civil Procedure, requires the condemnor to mention all owners, or the fact that they are unknown (subd. 2) but that the extent of the interest of the defendants need not be set out (subd. 5). The duty to set out the interest is by 1244, Code of Civil Procedure, put on the defendant. Plaintiff is therefore not bound by an allegation of ownership in the complaint which in addition alleges an interest also of unknown parties. Defendants assumed the burden of proof of ownership and procured exhibits showing the chain of title from Unger, Kaufmann, Thurston et al., but they did not produce any evidence as to the part that had not belonged to Unger, Kaufmann, Thurston et al. Defendants argue further that the original plats attached to the deeds as to parcel 5 second show that the right of way at the most eastern point reached the east line of lot 2 belonging to grantors but did not cross it: that if there is doubt from the description in the deed the plat is controlling, citing Ferris c. Coover, 10 Cal. 589. Plaintiff points out that on the plat the center line of the right of way at the point in question comes nearer to the east line of Lot 2 than the 36 foot distance between middle line and east border of the right of way, so that part of the 60 foot right of way is at any rate cut off by the east line. The witness Oakley, called by defendants, testified that ‘that little sliver’ on the outside of the curve, outside the limits of the construction, was immaterial to the railroad. Defendants argue that the new maps which show a larger protrusion over the east line of Lot 2 are unreliable because they were made by the witness Poss without knowing the plat attached to the deeds and by using uncertain monuments; other evidence shows that deeds were secured when the right of way crossed into any piece of property; that this was not done as to the Gillogley property could be considered an indication that the property line was not crossed; also that the arthquake of 1906 caused considerable earth movement in that neighborhood located on the San Andreas fault. Hence, they say that there was sufficient evidence to support the court's implied finding that the whole of the right of way parcel remained west of the east line of Lot 2, on the land of the grantors. Plaintiff answers that as there was some property not covered by the deeds the burden was on defendants to prove title tracing back to the government as the paramount source of title; as they have not done so they must lose even if the question who actually is owner is not solved. Rockey v. Vieux, 179 Cal. 681, 178 P. 712.

Defendants contend that if it was not certain that their right of way remained outside the Gillogley property the rule of Loustalot v. McKeel, 157 Cal. 634, 640, 108 P. 707, applies, holding that where a boundary is uncertain with respect to deeds and the parties make a marked dividing line in which they acquiesce and which they occupy during the period of prescription both parties are conclusively estopped from questioning such line; that this case is brought under the rule on the ground that they constructed their roadbed and paid taxes on it without any claim or protest by Gillogley. Plaintiff argues that there is no construction along the agreed borderline to bring our situation under the rule; defendants' witnesses place the right of way over the borderline, though not so far, and testify that the protruding part is beyond the area of construction; the payment of taxes as to possible Gillogley property is denied as the taxes were paid on the basis of a right of way through the lands mentioned in the deeds not mentioning Gillogley.

We have referred to the respective arguments and counter-arguments of the parties with some of the authorities upon which they rely for the purpose of showing the conflict in their respective contentions on the question of title. Though we must concede under the accepted rule that the burden of proving title was on the defendants, we cannot say that the trial court erred in finding for them even though there was no construction by the railroad along the disputed strip. It is clear from the evidence that no one else laid any claim to this disputed strip and that apparently adjacent landowners conceded defendants' ownership. But from a view of all the evidence it is apparent that the trial court had sufficient proof to support the finding that defendants had some compensable interest, and on that ground alone this portion of the judgment must be affirmed.

The next parcel referred to in the briefs as the Globe Wireless property is designated in the complaint as parcel 2 first (1.44 acres) and parcel 2 second (.67 acres). Although the two parcels are separated by parcel 5 first as to the title of which there is no controversy, the situation with respect to parcels 2 first and 2 second is identical.

In July, 1905, C. A. Hooper who owned tracts of land of which these two parcels formed part, made with the Ocean Shore Railway Company an agreement to place in escrow three deeds for rights of way through his different properties, to be delivered when the Railway Company should have completed construction and should have begun the operation of its line between the cities of San Francisco and Santa Cruz, and said line shall cross the rights of way described. Plaintiff alleges that this deed was never delivered as the railroad between the two cities was never completed and operated; defendants allege that it is unknwon whether it was ever delivered, contending that the condition was fulfilled by operations somewhere between the two cities, as the conditions did not require an unbroken line. It is, however, conceded that no deed was recorded. The agreement granted the Railway Company immediate possession and the roadbed was constructed and operated over the Hooper properties although there is a controversy as to how far the roadbed followed the right of way described in the agreement. Thereafter in November, 1907, Hooper conveyed the properties belonging to him across which the railroad ran to C. A. Hooper & Co., a corporation, without excepting any railroad right of way. After the operation of the railroad was stopped the description provided for assessment in San Mateo County mentioned the right of way running through the property of C. A. Hooper. Later the following conveyances of the land of Hooper took place: March, 1929, from C. A. Hooper & Co. to Heintz and Kaufmann; September, 1929, from Heintz and Kaufmann to robert Dollar Company; in 1933 from Robert Dollar Company to Globe Wireless, Limited, each of which deeds contained the exception ‘excepting and reserving therefrom the right of way of the Ocean Shore Railroad Company.’ There is no reference to the deeds put in escrow or to the Ocean Shore Railway Company which was a party to the escrow agreement, but only to the right of way of the Ocean Shore Railroad Company. In 1934 C. A. Hooper & Co. quitclaimed the right of way through his property to Selah Chamberlain and Selah Chamberlain quitclaimed the same right of way to defendant Ocean Shore Railroad Company. The description in these quitclaim deeds is the same as in the original escrow agreement. In 1937 after the commencement of this action C. A. Hooper & Co. made a new quitclaim deed to the Coean Shore Railroad Company which contains another description of the right of way and the sentence: ‘The above description is to cover the right of way and roadbed on which the Ocean Shore Railroad line was constructed and operated and a map is attached to this agreement showing the above mentioned property.’

Plaintiff contends that the original escrow agreement (and also the 1934 quitclaim deeds) describe a right of way far west of the actual location and that the reservations made in the mesne conveyances could only relate to the right of way as mentioned in the escrow agreement. It argues that therefore none of the deeds was effective; the deed put in escrow was not delivered and contained a description of other property; the 1934 quitclaim deeds contained the same wrong description and the 1937 quitclaim deed as to the actual right of way was made when the title had been transferred to Globe Wireless, which actually claims ownership in the proceeding which remained for trial in San Mateo County.

Defendants contend that the last quitclaim deed contains the correct description, and that the reservation in the mesne conveyances related to the actual right of way without any reference to the escrow deeds which moreover were probably never delivered. For that reason, they argue, Hooper & Co. retained title to the actual right of way in so far as the title had not been transferred to Ocean Shore Railroad by previous deeds; that the 1937 quitclaim deed was then effective to transfer to defendant all title to the actual right of way which they did not yet have resulting in a complete title by deed. In this respect defendants contend that where the description in the 1905 and 1934 deeds is ambiguous or defective the intention of the parties and the practical construction they gave to the deed is decisive, citing Blume & MacGregor, 64 Cal.App.2d 244, 148 P.2d 656; Schmidt v. Klotz, 130 Cal. 223, 62 P. 470; 9 Cal.Jur. 303 (Deeds, sec. 167); 26 C.J.S., Deeds, § 30, page 220. Here they claim the intention was to transfer the actual right of way and that this is shown by the last quitclaim deed as a practical construction. Plaintiff however urges that intent and practical construction can not vary the description of a deed which is clear and certain to the contrary, citing Fratt v. Woodward, 32 Cal. 219, 91 Am.Dec. 573.

Defendants argue further that the have acquired title by adverse possession and the payment of taxes, citing Smith v. Southern Pac. R. R. Co., 1 Cal.2d 272, 34 P.2d 713; Daniels v. Gualala Mill Co., 77 Cal. 300, 19 P. 519; Almaden Vineyards Corp. v. Arnerich, 21 Cal.App.2d 701, 705, 70 P.2d 243.

With respect to these two parcels there was sufficient evidence before the trial court to support the holding that defendants held title by deed. The reservation made in the deed from C. A. Hooper & Co. to Heintz and Kaufmann can very well be construed as referring to the right of way as it was actually on the ground, in which case the 1937 quitclaim deed of C. A. Hooper & Co., which clearly purported to transfer title to the actual roadbed, was effective. The fact that this deed was made after the commencement of the suit does not exclude it from consideration where it was made pending condemnation proceedings, before title vested in the public. Compare Brick v. Cazaux, 9 Cal.2d 549, 554, 71 P.2d 588; Bank of America v. City of Glendale, 4 Cal.2d 477, 482, 50 P.2d 1035; 29 C.J.S., Eminent Domain, § 202, page 1117. Although there was evidence before the trial court which would support the conclusion that the intention of the parties to the 1934 quitclaim deeds was also to transfer title to the actual right of way, we do not need this reasoning in support of the judgment of the lower court and therefore abstain from analyzing any of the cases cited by either party with respect to this point.

The property designated as parcel 1, and referred to as the Edgemar property, is the southern most parcel under condemnation. It adjoins on the north parcel 2, first discussed under the former paragraphs. The complaint mentions as owners Ocean Shore Railroad, Inc., C. A. Hooper & Co., Henry Sinsheimer and five Does as successors in interest to San Pedro Aldn & Dairy Company, a defunct corporation. A right of way through the property that afterwards became Edgemar was described in 1905 in the escrow agreement between C. A. Hooper and Ocean Shore Railway Company. However, C. A. Hooper seems to have had a 50% interest only in this property; a deed of January 31, 1906, by which the property itself was conveyed mentions not only Hooper but also Sinsheimer and the San Pedro Land p Dairy Company as grantors, the San Pedro Land & Dairy Company claiming to own a 1/414 interest. This deed to Lawler excepted ‘the land heretofore conveyed to the Ocean Shore Railway Company for a right of way and embracing 2.29 acres of land, more or less.’ In November, 1906, Lawler conveyed the property to Henshaw, Henshaw to Edgemar Realty Syndicate and Edgemar Realty Syndicate to two trustees as security for a loan from the Union Savings Bank of Oakland. All three deeds, made approximately at the same time, exclude the right of way of Ocean Shore Railway Company without reference to any conveyance. August, 1912, the trustees deeded to the Union Savings Bank of Oakland after foreclosure because of default of the Edgemar Realty Syndicate, again with the same exception. After dissolution of the Union Savings Bank its trustee Percy C. Black made a quitclaim deed in 1937 to the Ocean Shore Railroad Company; it ‘purports to convey only the sixty foot right of way and roadbed constructed by the Ocean Shore Railroad Company over which its trains were operated.’ The 1937 quitclaim deed of C. A. Hooper mentioned herein in the discussion of the Globe Wireless property also purports to quitclaim the actual right of way through Edgemar.

Plaintiff contends that the right of way as described in the escrow agreement is far to the west of the actual roadbed. On the other hand defendants argue that it is clear that the parties in interest wished to transfer the actual roadbed to the railway company and tried to act accordingly. Of the owners alleged by plaintiff in the complaint, Hooper made an express quitclaim deed of his part, and none of the others claim any interest. Edgemar Realty Syndicate, one of the later grantees, filed a map of its planned subdivision with the county recorder showing a 60 foot right of way, of which plaintiff concedes that it shows that actual location. Defendants seek therefore to apply to the Edgemar property the same rule as to construction of deeds according to intent of the parties and practical construction as mentioned with respect to the Globe Wireless Property.

With respect to the property under consideration the position as to the quitclaim deeds is different from that with respect to the preceding Globe Wireless property. Here the quitclaim deed of Hooper can not be sufficient basis of title as he had only a 50% interest and because in the deed to Lawler he and his associates excepted the right of way conveyed, which seems to refer to the agreement and not to the actual situation. However, if the reservations in the later deeds which except the right of way without special reference to any conveyance, are considered also to except the right of way as described in the agreement, and not the actual roadbed—and the trial judge could reasonably construe the reservations in all the means conveyances in the same way—then the title to the actual right of way would have gone by the successive mesne conveyances to Black of the Union Savings Bank and his quitclaim deed of 1937 would give defendants a title by deed. Plaintiff concedes that under this theory the various quitclaim deeds may have given defendants the necessary right of way for railroad purposes only, but argues that neither this nor any other ground gave defendants a fee that could survive nonuser or abandonment for railway purposes as in Ocean Shore Railroad Co. v. Spring Valley Water Co., 87 Cal.App. 188, 262 P. 53, and Midstate Oil Co. v. Ocean Shore R. R. Co., 93 Cal.App. 704, 270 P. 216. The argument is that defendants' claim must fail because the deeds here only mention the right of way for railroad and transportation purposes and the consideration is not the full value of the land, but, as recited in the escrow agreement, ‘the benefit by him expected to be derived therefrom’ and the quitclaim deed of Black expressed merely a nominal consideration. It may be conceded that ordinarily the rights conferred by such deeds would not be intended to survive nonuser or abandonment for railway purposes. However, the trial court could conclude to a contrary intent from the fact that Black made his deed in 1937 when actual user had been abandoned since 1920 so that the right of way granted could not with any possibility be dependent on actual user.

We hold therefore that also with respect to the Edgemar property the decision of the trial court is sufficiently supported by the quitclaim deed in evidence without any need of recourse to the unexpressed intention of the parties, although there can be no doubt that this intention at all times coincided with the result here attained.

The parcel, referred to as the Mary Tobin property, is part of the railroad right of way but it not part of the 3 1/313 miles sought to be condemned. It is a part of the strip lying between the property to be condemned and Sharp Park, the strip as to which the lower court recognized the right to severance damages. Plaintiff contends that between the description in the deed from Mary Tobin and the actual right of way there is an offset of 255 to 500 feet, and the evidence fully supports this contention. It is then argued by plaintiff that this gap in the record title excludes the Mary Tobin property and all of the right of way south of it from the contiguous parcel with respect to severance damages.

Defendants do not claim with respect to this property title by any quitclaim deed; the questions here involved are only whether the actual roadbed and the description in the deed correspond, whether the deed should be construed to apply to the actual roadbed and whether defendants have acquired title by adverse possession, dedication or estoppel.

The deed from Mary Tobin dated July 14, 1905, clearly purports to grant in fee a 60 foot strip through her property from the Burlington Beach property on the north to the Herbert et al. property to the south. Defendants contend that all later deeds as to the Mary Tobin property itself except the actual roadbed of the Ocean Shore Railroad Company. Actually the earlier deeds except the land as conveyed in Mary Tobin's deed of July 14, 1905. Defendants argue that any defect in description would make the Mary Tobin deed indefinite and ambiguous and that then intent and practical construction of the parties would be decisive; as to this construction defendants point to an agreement of June 24, 1918, between defendant Ocean Shore Railroad Company and Mary Tobin and others as to the construction of a ditch and pipeline, in which defendants' ownership of a strip is clearly recognized by Mary A. Tobin, and to the fact that none of the adjacent owners ever claimed any interest in the actual roadbed.

The evidence is too clear to permit controversy that the roadbed through the Mary Tobin property was constructed over a strip of the grantor's land running from 255 to 500 feet from the strip described in the deed of July 14, 1905. However, on the basis of the evidence before it the trial court can very well have concluded that defendants occupied the actual roadbed under a claim of right based on that deed, but under a mistake as to the location. In such a situation the possession is considered adverse and may ripen into complete title. 2 C.J.S., Adverse Possession, § 84, page 630.

The evidence shows without conflict that defendants' possession has been actual, open, notorious, exclusive, continuous and uninterupted for more than five years. In general a railway company will acquire by prescription only a servitude or easement of right of way for railway purposes which can be lost by nonuser or abandonment of its status as a railway carrier. This point will be treated more amply in a later part of the opinion. In the special situation, however, where the claim of right is based on a deed in fee the interest acquired should not be measured by the actual user made or needed by the railroad company but should be commensurate with the interest granted in the deed. As the decision of the lower court with respect to this point is sufficiently supported by the existence of a title in fee by adverse possession, no discussion is required of a possible construction of the deed itself as applying to the actual roadbed, notwithstanding the divergence in description.

On the trial of the issue of ownership the court found that the defendants did not have title to any portion of the roadbed running through Sharp Park and that they were not therefore entitled to severance damages in relation to the portion of the roadbed running south of the Park. From this ruling the defendants have appealed.

Primarily defendants concede that no deed or conveyance was obtained as to the 2500 feet of roadbed constructed through the Sharp lands. Plaintiff concedes that the roadbed was constructed and that the railroad was operated through these lands from about 1907 to 1920 when operation of the entire road was abandoned. Defendants state in their brief, without any reference to the transcript, that Honora Sharp, the prior owner of the premises, promised to give the right of way as a gift but died soon after without having done so. The date of the death does not appear but it is conceded that the railroad was in operation over those lands when they were conveyed by the trustees of Honora Sharp to the City and County of San Francisco in 1916 for park purposes.

On these facts the defendants contend that they have a vested right in the Sharp Park roadbed based on dedication, adverse possession or estoppel. The issue of dedication presents a mixed question of law and fact. Just like the question of abandonment the intention of the parties is the controlling factor. A dedication of property in fee for a public use cannot be implied from the user alone, and here defendants concede that there was no express dedication, that nothing more passed from the owner than an unproved oral promise of the owner to grant permission to construct the railroad over her lands. Assuming that such permission had been proved the question immediately arises whether it was more than a license to operate the railroad over the Sharp lands for the benefit of the lands, in which case the implied dedication would be conditional upon the continued operation of the railroad so that the right would revert upon the abandonment of the operation. It is a fair inference from all the evidence relating to this portion of the roadbed that, if any form of dedication could be implied from all the circumstances, it was a dedication conditioned upon the continued operation of the railroad for the benefit of the donor.

This view is fortified by the accepted rule that when a mere easement has been acquired for a public purpose the abandonment of the public purpose effects an abandonment of the easement. This rule is stated in Slater v. Shell Oil Co., 39 Cal.App.2d 535, 549, 103 P.2d 1043, 1051, where the court said: ‘It is well settled that where a utility acquires an easement (as distinguished from a fee simple title) in the nature of a right of way for a public purpose, the abandonment of the public purpose terminates the easement and the easement reverts. Northern Pac. Ry. Co. v. Townsend, 190 U.S. 267, 23 S.Ct. 671, 47 L.Ed. 1044; Barton v. Jarvis, 218 Ky. 239, 291 S.W. 38; Simons v. Munch, 115 Minn. 360, 132 N.W. 321; Chicago & N. W. Ry. Co. v. Sioux City Stockyards Co., 176 Iowa 659, 158 N.W. 769; Abercrombie v. Simmons, 71 Kan. 538, 81 P. 208, 1 L.R.A.,N.S., 806, 114 Am.St.Rep. 509, 6 Ann.Cas. 239; Robertson v. Bertha Mineral Co., 128 Va. 93, 104 S.E. 832; California & N. Railroad Company v. Mecartney, 104 Al. 616, 38 P. 448.’ The same case is authority for the rule that the question whether or not there has been an abandonment is a question of fact. Now defendants argue and cite authorities holding that since abandonment of an interest in land is a question of intent it is incumbent upon the landowner to prove that the licensee had such intent. This rule is general when applied to a grant or conveyance. Here the question of the burden of proof is not involved. The basic question is whether the easement acquired by sufferance may be lost by abandonment of the public use. Midstate Oil Co. v. Ocean Shore R. R. Co., 93 Cal.App. 704, 270 P. 216, and Ocean Shore Railroad Co. v. Spring Valley Water Co., 87 Cal.App. 188, 262 P. 53, cited and relied on by defendants, are not helpful. Both cases involved grants either in fee or of a perpetual servitude in the right of way for railroad purposes. The distinction is made clear in the last cases where the court said that the servitude had been acquired by grant in perpetuity and not (at page 194 of 87 Cal.App., at page 55 of 262 P.) ‘in any degree as a subsidy, or for any consideration of its usefulness to the land.’ Nothing is found in either case to the effect that a license or easement granted for a special public purpose does not lapse when the licensee abandons the purpose for which the right was acquired.

There can be no controversy over this general rule of property that an easement acquired by enjoyment or sufferance may be lost by disuse. Garbarino v. Noce, 181 Cal. 125, 130, 183 P. 532, 6 A.L.R. 1433; Civil Code sec. 811, subd. 4. As to an easement acquired by grant nonuser alone is not sufficient proof of an intention to abandon, yet, even as to such an easement such intent is properly inferred when such nonuser has continued for such a length of time as to be inconsistent with any other theory than an intent to abandon. 17 Am.Jur. p. 1029. Thus the question of the intent to abandon whatever rights the defendants could assert under their theory of dedication was a question of fact for the trial court and all the circumstances support the inference drawn by the trial court adverse to them.

Next the defendants argue that they gained a title in fee by adverse possession. They contend that their holding of the strip through the Park was hostile and under claim of right but they do not cite any evidence proving the assertion. Contrarily, since the right to operate was based solely on an oral permission presumably for the benefit of the lands, it was a reasonable inference that the holding, rather than being hostile and under claim of right, was merely a holding under the permissive use and therefore not adverse. Defendants cite Arrington v. Liscom, 34 Cal. 365, 94 Am.Dec. 722, following the undisputed rule that adverse possession for more than five years can ripen into a title in fee. They cite Barbour v. Pierce, 42 Cal. 657, 662, which is not in point as it only states that title to an easement can be acquired by holding under claim of right although the casement had its origin in a permission. It is dictum as no claim of right was found. Here there is no proof of claim of right and moreover defendants need for their argument more than an easement by user. They rely on the presumption of hostile intent and claim of right after long use, citing Yuba Consolidated Goldfields v. Hilton, 16 Cal.App. 228, 116 P. 712, 715, and Pacific Gas & Electric Co. v. Crockett Land & Cattle Co., 70 Cal.App. 283, 233 P. 370. But their express admission that there was no grant and the inference that their holding was merely permissive for the purposes of operating the railroad belies their argument.

Two elements of the doctrine of acquisition of a right through adverse possession are important here—first the holding for the prescribed period must be adverse and under claim of right, and second the owner of the land must have knowledge, or means of knowledge of the adverse claim. 17 Am.Jur. pp. 974–976; 9 Cal.Jur. p. 950; Civil Code, sec. 806; 1 Cal.Jur. p. 527. The Code section provides: ‘The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired.’ Thus where the easement is acquired either by prescription or adverse possession its character is determined by the user under which it is claimed. Fletcher v. Stapleton, 123 Cal.App. 133, 137, 10 P.2d 1019. See also Moore v. California Oregon Power Co., 22 Cal.2d 725, 735, 140 P.2d 798; Cordano v. Wright, 159 Cal. 610, 622, 115 P. 227, Ann.Cas.1912C, 1044; De la Cuesta v. Bazzi, 47 Cal.App.2d 661, 672, 118 P.2d 909; 9 Cal.Jur. pp. 950, 953.

Application of this rule to a railroad right of way leads to the conclusion that where no deed is involved the railroad company acquires by prescription or adverse possession only an easement in the right of way. 127 A.L.R.Annotation 517, 518. Another argument for this restriction is that an easement is also the extent of the interest which a railroad can condemn under sec. 1239, sub. 2 of the Code of Civil Procedure. City of Oakland v. Schenck, 197 Cal. 456, 466, 241 P. 545. It is fair to infer from what evidence there is on the subject that Mrs. Sharp's permission to operate the railroad over her lands gave a permissive use only dependent upon continued operation. Since the burden is on the defendants to prove that they obtained an interest in the land of greater extent, the implied finding of the trial court adverse to them cannot be disturbed.

Next the defendants claim that they acquired title to the strip through the Park by estoppel. Their argument on this point is not clear. We can find none of the elements of the doctrine of estoppel applicable to the facts of the case. This doctrine, based on sec. 1962, sub. 3, Code of Civil Procedure, is clearly stated in Davenport v. Stratton, 24 Cal.2d 232, 243, 149 P.2d 4, 9: ‘Estoppel may be defined to be a bar by which a man is precluded from denying a fact in consequence of his own previous action which has led another to so conduct himself that, if the truth were established, that other would suffer. (10 Cal.Jur. p. 611.)’

But two of the essential elements of the doctrine of equitable estoppel, knowledge on the part of the landowner, and ignorance of the true state of facts on the part of the railroad, are absent. ‘An estoppel is based on a knowledge of the facts and acquiescence with the situation developed thereby on the part of the party against whom it is claimed. ‘There can be no estoppel when the facts are not known, as no one can be presumed to have waived that the existence of which he has not known.’ Wheaton v. North British & M. Ins. Co., 76 Cal. [415], 429, 18 P. [758], 765, 9 Am.St.Rep. 216; Puterbaugh v. Wadham, 162 Cal. [611], 618, 123 P. 804; Norton v. Overholtzer, 63 Cal.App. 388, 218 P. 637. ‘There can be no estoppel in pais where the party against whom the attempt is made to invoke such estoppel does not know the full truth of the facts to which his conduct, declarations, or representations constituting the basis of the alleged estoppel relate.’ Bisconer v. Billing, 71 Cal.App. 779, 236 P. 329; Eaton v. Wilkins, 163 Cal. 742, 127 P. 71; Bashore v. Parker, 146 Cal. 525, 80 P. 707; Davis v. Winona Wagon Co., 120 Cal. 244, 52 P. 487; Murphy v. Clayton, 113 Cal. 153, 45 P. 267; Ions v. Harbison, 112 Cal. 260, 44 P. 572.' Weintraub v. Weingart, 98 Cal.App. 690, 701, 277 P. 752, 757. It is equally important that ‘One relying on a plea of estoppel must have been ignorant of the true state of facts and must have been intentionally misled by the act of the other to his injury. 10 Cal.Jur., pp. 636, 637; 10 R.C.L., pp. 696, 697; Maggini v. West Coast Life Ins. Co., 136 Cal.App. 472, 29 P.2d 263.’ Moss v. Underwriters' Report, Inc., 12 Cal.2d 266, 273, 83 P.2d 503, 506.

We have said that these two elements are not present here. The proof (if we may grant defendants the benefit of the term without any evidence) is that Mrs. Sharp gave them oral permission to operate the railroad across her land. This at its best was merely an easement by sufferance. But there is no proof, and no suggestion in the briefs, that Mrs. Sharp or her successors in interest had any knowledge that the defendants claimed any greater interest in the land, nor that, after they had abandoned operation of the railroad and removed all the tracks, they made any claim that they then possessed a title in fee to the strip formerly occupied.

The defendants assert that they obtained some color of title to the fee of the roadbed through the Park by payment of the taxes assessed to them since 1904. Payment of taxes alone is not proof of ownership of the land assessed. Keane v. Cannovan, 21 Cal. 291, 303, 82 Am.Dec. 738. It is insufficient to create any presumption of ownership. It would support an inference that as between the tax assessor and the taxpayer some taxable interest was assumed to rest in the taxpayer. But this alone could not overcome the presumption that the title is in the owner of the paper title and that the use by the railway was by permission or silent acquiescence. Furthermore there is no evidence that, following the abandonment of the operation, the true owners of Sharp Park had any knowledge of the payment of these taxes or that defendants based any claim to any interest in the land on such payment of taxes.

But it is argued that the defendants obtained the right to severane or consequential damages because of some general interest in the strip through the Park by reason of subdivision 5 of section 465 of the Civil Code. This section authorizes railroad corporations ‘To construct their roads across, along or upon any stream of water, * * * street, avenue or highway.’ Though the point is not made clear in the briefs it seems to be defendants' contention that the code section is a statutory grant to all railroad corporations of the unlimited right to occupy all public streets and highways and, as such, a right which becomes compensable in any suit to condemn any portion of a railroad right of way. If this is a proper construction of the code section it is apparent that it was modified by the later enactment of the Public Utilities Act in 1915, St.1915, p. 115, in which (section 43) the right of a railroad to cross a public road, highway or street is expressly limited. Though this section restricts the right to cross a public highway at grade it cannot be denied that the clear purpose of the Act is to vest in the Public Utilities Commission plenary power to regulate all railway construction interfering with the general use of public highways for highway purposes.

Hence, though section 465 of the Civil Code, which was enacted in 1872 when the building of railroads was a matter of special public concern, may have been intended as a franchise to railroad companies to occupy all public roads and highways that privilege was withdrawn by the enactment of the Public Utilities Act in 1915. Even if we consider that section as a legislative grant of a creative franchise it was nothing more than a vesting of power to acquire the franchise. By no process of interpretation can the section be held to be a special grant to all railroads of a vested right to use all public highways as they may choose. The right to acquire by occupation and use is far different from the ownership by grant of the right to use the highways. It is only the ownership of the vested right which may form a basis for severance damages in this case. The difference between these interests is well stated in San Joaquin & K. R. Canal & Irr. Co. v. Merced County, 2 Cal.App. 593, 596, 597, 84 P. 285, 286:

‘A corporation may have power to acquire realty, and yet never own such property. Its corporate franchise, its charter, may grant the power to acquire and exercise separate, distinct and varied franchises, but none may ever be acquired or owned.

‘This distinction between the power to own, and ownership, is very important when we come to consider the difference between the creative franchise, vesting the power to acquire, and other franchises which it may subsequently acquire by purchase or acceptance. It points the difference between the general, creative franchise to be, and the special franchises which, when accepted or purchased, best privileges or franchises resting in special grant from governmental sources. Above all things, it eliminates the heresy that all special franchises, enjoyed and exercised by a corporation, whether acquired by acceptance or purchase, are merged in the general franchise which creates the corporation, and endows it with enumerated powers.’

Defendants cite and rely on the statement in Joint Highway Dist. No. 9 v. Ocean Shore Railroad Co., 128 Cal.App. 743, 762, 18 P.2d 413, 420, where the court said that the railroad ‘could have been run’ over the public highway through Sharp Park. However the part of the opinion in which the cited words appear merely argues that the acquisition of a right of way through Sharp Park would not be made impracticable by the park purposes for which the property was granted to San Francisco as the right of way ‘could have been run’ over the portion granted for highway purposes. This statement is purely factual and the words ‘as contemplated by subdivision 5 of section 465 of the Civil Code’ are surplusage. The case does not contain any decision that the Railroad Company had any vested rights as to Sharp Park under that section nor was any question of severance damage involved.

It would serve no useful purpose to review other cases cited by defendants on the general question of the extent of corporate franchises. Sound reason does not support their contention that the State granted to every private railroad, both local and foreign, the perpetual right to use all public streets and highways for the operation of railroads, or that this right or franchise is a property right for which all railroads must be compensated whenever the State seeks to construct, improve, or make use of any of its public highways for general highway purposes. If the statute could be made susceptible to such a construction we have no doubt that it would be promptly held unconstitutional as a gift of public property for private purposes.

Furthermore, assuming the statute to be valid as a franchise granted as incident to the incorporation of all railroads it is settled law that such privilege does not ripen into a right until accepted and actually exercised by the corporation. Stockton Gas & Electric Co. v. San Joaquin County, 148 Cal. 313, 318, 83 P. 54, 5 L.R.A.,N.S., 174, 7 Ann.Cas. 511; Western Union Telegraph Co. v. Hopkins, 160 Cal. 106, 111, 116 P. 557. Here there is no proof that the purported franchise was accepted. All the evidence we have been able to find is to the contrary—that the railroad through Sharp Park was constructed in part near or along the side of the county road, but that no part of the county road was occupied or used during the period of forty years since the Railway Company commenced construction. It also appears that any right which defendants might have had under the statute was abandoned long before this proceeding was commenced. Sears v. Tuolumne County, 132 Cal. 167, 64 P. 270; Tehama v. Pacific Gas & Electric Co., 33 Cal.App.2d 465, 471, 91 P.2d 936, 939. In the latter case the court quoted with approval the pertinent passage from 26 C.J. § 110, page 1042, reading: ‘A franchise may be lost by subsequent abandonment after it has been exercised. The abandonment of a franchise, is a question of intention. Nonuser is a fact in determining it. The disposal of property necessary for use in the exercise of a franchise will tend strongly to show the abandonment of such franchises.’ See also 37 C.J.S., Franchises, § 26.

To state defendants' position in simple language it is this—the Ocean Shore Railroad, Inc., a foreign corporation, succeeded to the rights of the old Ocean Shore Railway Company including the statutory franchise granted by section 465 of the Civil Code. Its predecessor had never accepted this franchise and had not operated over the county road in Sharp Park. Nevertheless it is argued that this is a creative franchise which, though not having been accepted over a period of forty years from the time of the ‘grant’, is nevertheless available to the successor which is not an operating railroad. We are satisfied that the code section was never intended to impose such an unreasonable servitude upon all the public highways of the State. This conclusion is fortified by the reasoning in United States ex rel. Tennessee Valley Authority v. Powelson, 319 U.S. 266, 63 S.Ct. 1047, 1055, 87 L.Ed. 1390, 1400, 1401, where compensation for a possible use of land based on the right of the landowner to acquire other property by eminent domain was denied, the court saying:

‘Equity and fair dealing do not require the payment by the United States to the landowner of the amount of a valuation of his lands based on the existence of his privilege to use the power of eminent domain. It is ‘private property’ which the Fifth Amendment declares shall not be taken for public use without just compensation. The power of eminent domain can hardly be said to fall in that category. It is not a personal privilege; it is a special authority impressed with a public character and to be utilized for a public end. An award based on the value of that privilege would be an appropriation of public authority to a wholly private end. * * * The landowner is, to be sure, deprived of a preferential advantage, which was an incidental attribute of the public authority with which the state endowed him. But that advantage had no higher dignity than a promise of a gratuity.

‘There are numerous business losses which result from condemnation of properties but which are not compensable under the Fifth Amendment. The point is well illustrated by two other lines of cases in this field. It is a well settled rule that while it is the owner's loss, not the taker's gain, which is the measure of compensation for the property taken (United States v. Miller, [317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336, 147 A.L.R. 55, supra]; United States v. Chandler-Dunbar Water Power Co., supra, 229 U.S. [53], page 81, 33 S.Ct. page 678, 57 L.Ed. 1063, [1082]; Boston Chamber of Commerce v. Boston, 217 U.S. 189, 195, 30 S.Ct. 459, 460, 54 L.Ed. 725 [727]), not all losses suffered by the owner are compensable under the Fifth Amendment. In absence of a statutory mandate (United States v. Miller, supra, 317 U.S. at page 376, [370], 63 S.Ct. page 281, [276], 87 L.Ed. [336, 341], 147 A.L.R. 551), the sovereign must pay only for what it takes, not for opportunities which the owner may lose. See Orgel, Valuation Under Eminent Domain (1936) § 71, § 73.’

Hence, if the defendants had any franchise or ‘right’ stemming from this section of the code it was nothing more than an ‘opportunity’ which might be asserted as incident to the operation of the railroad and, as such, it was not an element of damages. But, assuming that through any one of these theories the defendants obtained some rights in the strip running through the Park which would support a claim to severance or consequential damages, the evidence discloses an intentional abandonment of all those interests long prior to the commencement of this proceeding.

The defendants state in their closing brief: ‘The Spring Valley litigation prevented the use of Water Company lands and the Sharp Park roadbed and in addition it also prevented the use of the balance of the said property from San Francisco to Santa Cruz.’

This is an incorrect statement of the true situation. The Spring Valley litigation involved the question of reversion to the original owners after abandonment of the right of way for railroad purposes. The abandonment occurred more than a year earlier when the corporation requested the State Railroad Commission to permit it to abandon operations because of its inability to pay the wages of its employees or to make any profit. The controversy with the Spring Valley Water Company had no relation to either of these two factors. The Commission on October 20, 1920, granted the petition and authorized the defendants ‘to discontinue permanently on its Northern Division its service as a common carrier. * * *’ A few days later the Railroad Commission granted a similar application of the Ocean Shore to discontinue permanently its service as a common carrier on its southern division. This was the isolated road running from the City of Santa Cruz north to Swanton and separated from the northern division by a gap of approximately 26 miles. Manifestly the litigation over the Spring Valley lands had no bearing on the abandonment of this portion of the road.

At about the same time these applications were granted the Railroad applied to the Interstate Commerce Commission for leave of abandonment and stated, in answer to the Commission's question whether it was proposed to abandon all of the line of railroad, or the operation thereof: ‘All of said line of railroad and the operation thereof.’ In the same application the Railroad stated, in answer to a question: ‘Plan is to dispose of entire property, thus eliminating all charges in connection with the property proposed to be abandoned.’ And whether all ‘or any portion’ of the line was to be replaced with a new line of railroad the answer was ‘No.’

When these permits from the federal and state agencies were granted the Railroad forthwith removed all its tracks and ties, disposed of them along with the engines, passenger and freight cars, station ground, terminal facilities and other saleable assets. These voluntary acts had no relation to the litigation with the Spring Valley Water Company.

Indicative of the fixed intention of the corporation to abandon its line of railroad as well as its status as a public utility it sold, during this period of liquidation, its terminal facilities and parcels of the right of way held in fee, quitclaimed other parcels in which it held reversionary interests only, and suffered decrees to be entered on advice of its legal counsel quieting title to other portions in which it held conditional easements or reversionary interests.

Following these permits to discontinue, the corporation addressed some seventeen applications to the California Commissioner of Corporations for permission to distribute capital assets to the stockholders. These applications stated: ‘The said corporation is in liquidation and has been since 1920 and is not engaged in, nor does it propose to engage in business of any kind other than such as is appropriate or incidental to such liquidation.’ The roadway was left in disrepair for approximately fourteen years, and no work was done on it until defendants learned the plans of the State to construct the highway. Then a few men were put to work on a portion of the old roadbed to create the impression that defendants still had a railroad which would be damaged by the State's new highway. (When the State, through cross-examination of the witness who directed these operations, endeavored to prove the cost, the witness had no recollection of what had been expended.)

Aside from the Chamberlain deal, reference to which is made in other portions of the opinion, the defendant corporations disclosed no other purpose at the time of the commencement of the trial than the purpose to liquidate the assets. Through successive conveyances they sold to a private individual all the remaining assets and rights of way of the portions here involved retained nothing but an empty franchise.

This state of facts, which for all practical purposes is either conceded or proved by undisputable evidence, can only lead to the one conclusion that all possible rights of defendants to occupy a right of way through Sharp Park were abandoned. The rights which they could acquire on the basis of section 465 of the Civil Code were not of greater extent or more durable character than those they could acquire by prescription or condemnation, i. e., a right limited by the actual user and lost by nonuser or abandonment. Defendants argue that as the discontinuance of operation took place with authorization of the Railway Commission, section 468 of the Civil Code protects them from loss of franchise rights by abandonment or nonuser. This section cannot have that effect. It may be conceded that, as we held in Midstate Oil Co. v. Ocean Shore R. R. Co., 93 Cal.App. 704, 710, 270 P. 216, the penalty of forfeiture of the Ocean Shore Railroad Company's franchise under that section as it read before 1937 did not apply as the Railroad Commission had authorized it to terminate its services as a common carrier. However, plaintiff argues the loss of defendants' right, if any, to operate through Sharp Park independent from section 468, on the ground of nonuser or abandonment and section 468 does not purport to abolish as to railroads the accepted doctrine that easements can be lost in such way. (See for example section 811, Civil Code.) A similar problem was presented in Home Real Estate Co. v. Los Angeles Pac. Co., 163 Cal. 710, 713, 126 P. 972, where the parties had argued forfeiture under the terms of the statute of 1880—in 1905 incorporated in our section 468—but where the Supreme Court held that the facts supported the finding of abandonment of the easement of railroad right of way irrespective of the statute. The evidentiary facts which in that case were held to provide adequate support for the finding of abandonment were not stronger than those in the case at bar. The evidence relating to abandonment in this case, shows much more than cessation of operation with authorization of the Railroad Commission; the corporation voluntarily dissolved its status as a railroad carrier, sold all its movable property and equipment, distributed its assets to its stockholders, and sold, quitclaimed, or suffered final judgments against it, quieting title to large sections of its right of way. It may be that nevertheless defendants' franchise to be as a railroad corporation still exists under section 468, but it was for the trial court to decide, independent of that section, on the basis of the evidence described earlier in more detail, whether defendants had any rights of operation through Sharp Park left for which they were entitled to severance or consequential damages. Under the rule of People v. Ricciardi, 23 Cal.2d 390, 402, 144 P.2d 799, it was within the province of the trial court to determine what property, other than the strip of roadbed actually taken, would be damaged by the taking because of severance. Whether the interest, to which the defendants seek to attach their claim of severance or consequential damages, has been abandoned, conveyed, assigned or otherwise lost to them is a question of both law and fact. But, in so far as it is a question of fact, it is one of those issues which must be determined by the court in the absence of the jury. As stated before, the facts give ample evidentiary support to a finding that defendants had lost by nonuser or intentional abandonment whatever rights they might have acquired with respect to operation through Sharp Park.

Defendants assert that even if they had no rights whatever as to operation through Sharp Park, connecting their roadbed north and south of it, they would be entitled to consequential or severance damages also with respect to the southern part, because all the parts of their roadbed together as one unit had a special value for railroad purposes which was destroyed by the taking of the 3 1/313 mile strip now under condemnation. They contend that the right of compensation for the destruction of such unity of use is protected by the Fifth Amendment of the Federal Constitution, citing Monongahela Navigation Co. v. United States, 148 U. S. 312, 13 S.Ct. 622, 37 L.Ed. 463. The later United States Supreme Court cases do not bear out this contention. Especially United States ex. re. Tennessee Valley Authority v. Powelson as quoted, supra, holds that not all losses from taking by eminent domain are compensable under the Fifth Amendment and that no payment is required for frustration of opportunities which the owner may lose. The Monongahela case is distinguished as concerned with the appropriation and not the destruction of a going concern, whereas also an element of estoppel is mentioned based on special facts not at all applicable to our case. In California the question has been decided against defendants in Oakland v. Pacific Coast Lumber & Mill Co. 171 Cal. 392, 398, 153 P. 705, 707, which rejects ‘unity of use’ as the determinative factor in the solution of the question whether or not separate pieces of property constitute one parcel within the meaning of section 1248 of the Code of Civil Procedure. It is only where physically contiguous property is injured by the taking that damages by reason of the severance are allowed under that section. To the same effect Atchison, T. & S. F. Railway Co. v. Southern Pac. Co., 13 Cal.App.2d 505, 520, 57 P.2d 575; County of San Mateo v. Christen, 22 Cal.App.2d 375, 381, 71 P.2d 88.

Appellant also argues that the taking of the 3 1/313 mile strip north of the park cut off the access to the roadbed farther south and that therefore there is a damaging of that southern roadbed for public use for which section 14, article I of the California Constitution requires just compensation, citing Rose v. State of California, 19 Cal.2d 713, 123 P.2d 505; Bacich v. Board of Control, 23 Cal.2d 343, 144 P.2d 818; Beals v. City of Los Angeles, 23 Cal.2d 381, 144 P.2d 839; People v. Ricciardi, 23 Cal.2d 390, 144 P.2d 799. However these cases only hold compensable damage to an actually existing abutter's easement of access, whereas defendants do not have such right through Sharp Park.

The contentions that a unity of railroad use is destroyed or access to a continuous roadbed is cut off lack factual support. The defendants having lost by abandonment all the right of way through the Park, and having lost by transfer, reversion, or judicial decree other portions of the right of way, they did not possess at the time suit was filed a contiguous right of way for any railway. They held at the most a paper franchise to operate a railway and isolated portions of the old roadbed. All these rights were conveyed by the corporation to a private individual in November, 1933. At the time this sale was made the corporation had disposed of so many other portions of the old roadbed that those portions lying south of Sharp Park could not under any method of reasoning be held contiguous to the isolated portion here sought to be condemned. This leaves the defendants in this position—owning certain portions of the old right of way south of Sharp Park they might possibly by future negotiations procure a right of way connecting them with, the portion sought to be condemned. But, whenever a claim for damages is asserted, the burden is on the landowner to prove actual, rather than ethereal, damage to his property. Here there is no severance of a contiguous right of way. There is no proof of consequential damage. To the contrary the proof is that a new railroad over these rights of way is an economic improbability as evidenced by the fact of forty years of financial failure and the daily increase of automotive freight and passenger traffic.

From the foregoing we conclude that the trial court properly found that defendants were not entitled to severance or consequential damages by reason of their holdings south of Sharp Park.

Defendants' appeal from the order granting a new trial on the issue of damages is without merit. The jury returned a verdict for $485,190 for the property to be taken and for $30,000 severance damages. Defendants concede that there was a wide conflict in the estimates given by the different witnesses ranging from $3,200 to $5,200 by plaintiff's witnesses to $800,000 to $1,376,000 by defendants' witnesses. This wide divergence in the estimates of the witnesses is based to some extent on the theories of the various witnesses as to the proper measure of damages—plaintiff's witnesses valued the land as an abandoned railroad right of way for its use for other than transportation purposes; defendants' witnesses valued the land on the basis of reproduction costs less depreciation for its highest possible use—a railroad right of way. Though we do not concede the soundness of defendants' theory as applied to the circumstances of this case, nevertheless if we assume it to be correct, there is still a wide conflict in the other evidence of the market value of the portion of the roadway to be taken as well as the severance or consequential damage to that not taken. Indicative of the conflict in values is the conflict in theories upon which these values were based. The physical facts disclosed an abandoned roadbed overgrown in part with shrubbery, washed out by rains, and destroyed by erosion. Notwithstanding these conditions defendants contend that they were entitled to a valuation based on the original cost of constructing a railroad roadbed, less the depreciation. Plaintiff was, of course, not seeking to condemn a railroad roadbed for railroad purposes. It was seeking to condemn a vacant strip of land 60 feet wide and 3 1/313 miles long which had formerly been used as a railroad right of way but had been abandoned and unused as such for more than fourteen years. Much evidence was offered by the defendants to show the value of this old roadbed in the way of saving to the State in its plan to construct a public highway over that territory. This tendered a false issue. It was so held in United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 280, 87 L.Ed. 336, 343, 147 A.L.R. 55, where the court said: ‘Since the owner is to receive no more than indemnity for his loss, his award cannot be enhanced by any gain to the taker. Thus although the market value of the property is to be fixed with due consideration of all its available uses, its special value to the condemner as distinguished from others who may or may not possess the power to condemn, must be excluded as an element of market value.’ Hence the value of the property to the owner, or the loss suffered by him through the taking is the basis upon which the jury must determine the amount which the condemner must pay. The expenditures of the defendants' predecessor in interest advanced in the construction of the roadway for railway purposes has no bearing on the question of the ‘loss' which they would suffer by the taking of the old roadbed for highway purposes. If the value of the existing roadbed for its highest probable use (such as the construction of another railway over the same route, as defendants argue) should be the measure of damages, the evidence as to the probability or improbability of such use was in sharp conflict. The trial court had before it the undisputed evidence that the defendants had stated to the Interstate Commerce Commission that they had abandoned ‘all of said line of railroad,’ that they planned ‘to dispose of entire property’ and that it did not plan to replace it because a railway over that line could not be operated profitably. It also had the evidence that as early as 1920 the railroad conceded that motor vehicle freight and passenger traffic had rendered the operation of a railroad in that territory impractical.

The formula of cost of reproduction less depreciation as a measurement of damages is not applicable here. Evidence that reproduction of the railroad roadbed for railway purposes has been made impracticable by defendants' voluntary abandonment of railroad operations and by their disposal of the connecting links of its right of way by sale, abandonment, judgment, or reversion renders the question of possible reproduction one of fact. The defendants own an abandoned railroad right of way and they may still have possessed the hope of operating a future railway. In order to distribute the proceeds of their saleable assets among their stockholders they represented to the appropriate state and federal agencies that they had no intention of again operating a railway. There is no evidence of any possibility of any other taking over the right of way for the purpose of operating a railway (except the Chamberlain group, reference to which will be made later). Unimpeachable evidence of the economic infeasibility of such operation practically demonstrated its impossibility as a factor of valuation. Under these circumstances the measure of damages for the taking of this 3 1/313 mile strip is the ‘loss' which defendants will suffer, and not the ‘gain’ to the plaintiff. What the defendants in reality claim is that, in assessing the damages to this portion of the old roadbed, the jury should have allowed them the ‘strategic value’ to the State for highway purposes. That this is not a proper measure of damages in condemnation proceedings was held in United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 33 S.Ct. 667, 678, 57 L.Ed. 1063, 1082, where the Supreme Court said: ‘A ‘strategic value’ might be realized by a price fixed by the necessities of one person buying from another, free to sell or refuse, as the price suited. But in a condemnation proceeding, the value of the property to the government for its particular use is not a criterion. The owner must be compensated for what is taken from him; but that is done when he is paid its fair market value for all available uses and purposes. Lewis, Em.Dom. 3d ed. § 706; Moulton v. Newburyport Water Co., 137 Mass. 163, 167; United States v. Seufert Bros. Co., [C.C.], 78 F. 520; Alloway v. Nashville, 88 Tenn. 510, 514, 13 S.W. 123, 8 L.R.A. 123; United States v. Honolulu Plantation Co., 58 C.C.A. 279, 122 F. 581.'

Defendants emphasize a quotation from the opinion in Joint Highway Dist. No. 9 v. Ocean Shore Railroad Co., 128 Cal.App. 743, 759, 18 P.2d 413, 419, stating that ‘the cost of reproduction of such improvements becomes a factor in the determination of market value.’ The sentence immediately following should have also been quoted to make the meaning clear. It reads: ‘This does not mean, however, that such cost of reproduction is the market value of the land, for other factors, including demand, enter into the ultimate determination of market value.’ Concededly the cost of reproduction becomes a factor in determining the true market value. But the real test is what some purchaser other than the condemnor would be willing to pay for the property and what it is worth to the owner in the open market—not what the necessities of the condemnor require him to pay for his special project.

Incident to the question of damages to the 3 1/313 mile strip of roadway is the final judgment in Joint Highway Dist. No. 9 v. Ocean Shore Railroad Co., 128 Cal.App. 743, 18 P.2d 413. There the Ocean Shore Railroad Company and an individual owner obtained a judgment for $112,000 as damages for the taking of five miles of the roadbed lying south of the property here involved, and south of Sharp Park. In affirming that judgment the court said: (at page 749 of 128 Cal.App., at page 415 of 18 P.2d) ‘It is not disputed that the property here involved constitutes the only practical railway gateway into the territory referred to above and that the grading thereon constitutes 95 per cent. of the work necessary to complete a roadbed for either a railroad or a highway.’

Now if five miles of ‘the only practical railway gateway’ were worth only $112,000, it is difficult to conceive how 3 1/313 miles of the same roadbed are worth $515,000 unless the jury applied the universally discarded formula that the condemnor should pay for what he gains rather than for what the owner loses.

In granting the motion for a new trial the court had knowledge of this final judgment as it was frequently referred to by both parties throughout the trial; it had knowledge of the opinion of the court reviewing that judgment, and, as defendants herein repeatedly contend, such judgment is now res judicata.

We find no error in the admission of evidence tending to prove that defendants' right of way was only an abandoned roadbed. That was an issue properly raised by plaintiff with respect to the proof of the loss which defendants might suffer as a result of the condemnation. Defendants argue that evidence with respect to the value as an abandoned roadbed should be excluded because Ocean Shore Railroad Company v. Spring Valley Water Co., supra, Midstate Oil Company v. Ocean Shore Railroad Co., supra, and Joint Highway District No. 9 v. Ocean Shore Railroad Company, supra, had established that the Ocean Shore rights of way had not been abandoned. We have distinguished those cases in earlier parts of the opinion where the argument had some semblance of justification. With respect to the new trial as to the amount of compensation the argument is misleading. An abandoned roadbed in that respect is not one the rights to which have been abandoned—the question treated in those prior cases—but one the operation of which has been permanently discontinued. There can be no doubt that the evidence with respect to the permanent abandonment of operation was both competent and decisive.

The failure of the trial judge to accompany the jury in its view of the premises did not preclude him from granting a new trial on the ground of insufficiency of the evidence. Southern California Edison Co. v. Gemmill, 30 Cal.App.2d 23, 27, 28, 85 P.2d 500. Defendants try to distinguish the Gemmill case because of the special importance of the visible elements in the case at bar. However, as suggested by plaintiff, the viewing by the jury could serve no useful purpose as they were merely shown a newly constructed state highway without any possibility of determining the condition of the roadway at the time the suit was commenced and the conditions in accordance with which the damages had to be determined. At any rate defendants can not complain of the absence of the trial judge on this appeal as they acquiesced in his action. County of San Luis Obispo v. Simas, 1 Cal.App. 175, 182, 81 P. 972. The record discloses that before the jury left to view the premises counsel for both sides expressly stipulated that the court need not accompany them. This must be deemed a waiver of the presence of the trial judge for all purposes—including the right to grant a new trial on the issue of damages.

Inasmuch as the case must be remanded for a new trial on the issue of damages it is appropriate to direct attention to another matter which is referred to in the briefs of both parties but upon which the recorded evidence is not clear. The defendants state in their brief ‘On October 16, 1929, Chamberlain obtained the final option to purchase the said roadbed which was to extend until the final determination of the Spring Valley litigation and to continue until a six months' notice had been given to Chamberlain that the option be exercised to protect his rights under said option.’ In November, 1933, this option was exercised and thereafter the option price was paid to the Railroad. Again they state: ‘* * * the Chamberlain Associates held and exercised an option on it.’ The plaintiff cites in one of its briefs as indicative of the value of the property taken, ‘the option to sell all of the right of way in San Mateo County for $100,000. Such an option was in force from 1929, until exercised in 1934, covering a right of way variously estimated from 15 to 20 miles in length.’

It seems from the manner in which the subject is treated in the briefs that all parties take for granted that the evidence of these options and dealings with the Chamberlain group was all before the jury. The plaintiff cites it as bearing upon the question of the unreasonableness of the verdict. The defendants cite it as bearing upon the issue of abandonment and the asserted plan of rehabilitation of the railroad. The reporter's transcript discloses that on the closing days of the trial and while the jury was absent viewing the premises, the court took up the question of admissibility of documentary evidence regarding the option to Chamberlain and its assignment to Middleton. No entry is made either in the reporter's or the clerk's transcript as to what ruling was made on the offer but it does appear that in the cross-examination of Middleton by counsel for defendants he stated that an option running to Chamberlain dated in 1929 had been ‘received’ in evidence and questions were then directed to the same witness relative to a letter of 1934 and an agreement in the same year between Middleton as purchaser and the Ocean Shore Railroad Company. The latter agreement appears in the file as Plaintiff's Exhibit 62 with the notation in the margin by the clerk of the court, ‘in evidence for admissibility of evidence matter.’ The same notation appears as to the letter of February 20, 1934. These documents evidenced the sale by the railroad company to George Middleton, as assignee of the Chamberlain options, of: ‘all of the seller's right, title, and interest in and to said roadbed and right of way for railroad tracks and other railroad requirements, * * * owned or formerly operated by the Ocean Shore Railroad Company, lying between the westerly line of Junipero Serra Boulevard in said City and County of San Francisco and Davenport in the County of Santa Cruz.’

There is no dispute in the record that the portion of the right of way thus disposed of was between 15 and 20 miles in length. The purchase price of all this property was fixed at $100,000, evidence of the payment of which appears in the record. The option was originally granted for the price of $100,000 on October 16, 1929, and extended and new options of the same nature were granted until on November 10, 1933, notice was given of the intention to exercise it. After that date the time for payment of the option price was first extended and then on February 20, 1934, payment in instalments permitted and further privileges with respect to acquisition of the stock of defendant Ocean Shore Railroad Company granted. The instalment payments originally amounting to $25,000 yearly were cut down by an agreement of April, 1935, to $16,000 yearly so that the last payment took place on February 21, 1938. Nevertheless in those different agreements the price to be paid remained practically the same (except that the purchasers agreed to pay taxes amounting to some $2,500 per year).

It is generally accepted that sales, options, and offers for the sale of the land under condemnation made by the owner if sufficiently near the time of the taking to be of service to the jury, are admissible against him as admissions against interest and in those jurisdictions such as California, where the measure of damages for the taking is the fair market value of the property at the time of the taking they are held competent evidence as having ‘a substantial bearing’ on the question of such market value. Assuredly such evidence is not conclusive proof of the market value of the property taken but it is relevant to show ‘what a willing buyer would pay in cash to a willing seller.’ United States v. Certain Parcels of Land, etc., 3 Cir., 144 F.2d 626, 629, 155 A.L.R. 253; Springer v. City of Chicago, 135 Ill. 552, 26 N.E. 514, 12 L.R.A. 609; Houston v. Western Washington R. Co., 204 Pa. 321, 54 A. 166, 168; Hanson Lumber Co. v. United States, 261 U.S. 581, 43 S.Ct. 442, 67 L.Ed. 809, 814; 18 Am.Jur. p. 993; 155 A.L.R.Ann. 273.

In their petition for a rehearing the defendants assert that these options were first entered into in 1921, that the final option was executed in 1929, and exercised in November, 1933. They argue from this that the time is too remote and cite authorities holding that sales, or offers of sale, made by the landowner within one, two or three years were held to be too remote as evidence of value. The cases are not helpful. The question must be decided by the trial court on consideration of all the circumstances of the particular case. There is no fixed formula determining when proffered evidence is not pertinent to the question of value because of the time element. Evidence having been tendered by the defendants that these options had been outstanding from 1921 to 1938, at least, the plaintiff sought to show that the agreed price for the sale of the entire northern portion of the railway had never been increased or decreased during the full period of seventeen years. Defendants argue that it was not admissible because the final option was exercised at the beginning of the depression of 1929. But if the evidence shows that the price was fixed in 1921 and remained unchanged until 1933, it went through two depressions and one period of inflation without any change in the price.

Hence we hold that it was for the trial court to determine under all the circumstances of the case whether the proffered evidence was admissible. But, if this evidence was not admissible as bearing on the question of value at the time of the trial, it may have been competent as cross-examination of those witnesses who asserted throughout the trial a highly fantastic value of the small portion of the right of way under condemnation. In any event it was within the province of the trial court to determine its admissibility, and the record does not show what ruling was made.

If the evidence of the option to sell, the exercise of the option, and the sale for $100,000 of the 15 mile portion of the railroad right of way went to the jury it was sufficient in itself to support the order of the trial court granting a new trial on the ground of excessive damages.

After the appeal had been partially briefed the defendants moved for leave to offer additional evidence in this court consisting of tax rolls and other documents affecting the title to three of the parcels of land involved herein. This motion was made more than two years after the cause had been tried in the superior court and no good reason was given why the proffered documents, all of which were in defendants' possession, were not discovered in time for that trial. Since the proffered evidence is merely cumulative, relating to events occurring long prior to the trial, the motion made at this time must be denied. Baker v. Ferrel, 78 Cal.App.2d 578, 177 P.2d 973.

Judgment and order affirmed.

On Petition for Rehearing.

Following the entry of the judgment of affirmance a controversy arose over the matter of the costs on appeal because of the cross-appeals and the rule respectings costs in condemnation proceedings. The parties have accordingly stipulated, without prejudice to any further proceedings on the merits of the appeal, as to a fair apportionment of these costs and in accord with such stipulation the judgment is modified to real that each party shall assume its own costs heretofore expended on appeal and that plaintiff will pay to defendants in addition the sum of $1,250 on account of defendants' costs.

The petition is denied.

NOURSE, Presiding Justice.

GOODELL, J., and JONES, J. pro tem. concur.