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

PEOPLE v. AUMAN et al.

Civ. 17546.

Decided: July 13, 1950

William H. Wadsworth and Edgar L. Fraser, Los Angeles, for appellants. George C. Hadley, San Francisco, Hodge L. Dolle, R. B. Pegram, John N. McLaurin, and Charles Glass, Jr., all of Los Angeles, and Warren P. Marsden, Sacramento, for respondent.

From a judgment in favor of plaintiff in a condemnation action, defendants O'Connell and Levingston appeal.

Facts: Plaintiff filed a complaint in eminent domain on June 18, 1948, at which time a summons was served on the owner of the fee, J. E. Auman. Defendants at the time occupied the premises under a written lease expiring March 31, 1949. Paragraph 3 of article 4 of the lease reads in part as follows: ‘That if the leased premises are * * * taken in whole or in part by eminent domain * * * so as to be * * * reduced in space * * *, the Lessor may, on written notice of Lessee within 15 days from date of such damage, terminate this lease, * * *.’

On June 24, 1948, Mr. Auman delivered to defendants a written notice stating that he had been served with a summons in a condemnation proceeding and elected to terminate his lease with defendants in accordance with the terms of paragraph 3, article 4.

On or about July 25, 1948, plaintiff acquired title to the property which was the subject of the condemnation suit by grant deed from the owner. Thereafter defendants entered into a rental agreement with plaintiff dated August 3, 1948, covering the property in question for the period from July 25, 1948 to October 1, 1948. This lease contained the following clause: ‘(11) In the event there is any prior existing lease or rental agreement between tenant and State (or its predecessor in interest) covering the subject property, it is agreed and understood that this rental agreement shall cancel and terminate said prior lease or rental agreement as of the effective date of this rental agreement.’

Questions: First: Were defendants entitled to compensation for the taking of their leasehold interest on the property being condemned?

This question must be answered in the negative. By the action of plaintiff's grantor defendants' lease was terminated. By the agreement of August 3, 1948, defendants expressly recognized and agreed to the termination of the prior lease. Hence defendants did not have any property taken in the condemnation proceeding since at the time of trial they had no interest in the property.

The agreement of August 3, 1948, constitutes a novation, and the rights of the parties were covered solely by the new agreement, the original lease being void and of no effect. (Eckart v. Brown, 34 Cal.App.2d 182, 187, 93 P.2d 212.)

Second: Were defendants entitled to recover damages for (1) the value of trade fixtures left in the premises, or (2) the cost of removing and relocating the fixtures taken away?

This question must also be answered in the negative. (1) Since it is conceded that all the machinery and equipment installed on the premises by defendants were removable fixtures, the fact that defendants chose to leave some of them on the premises did not constitute the taking by plaintiff of defendants' property. Therefore compensation was properly denied defendants for such fixtures. (2) The cost of removing and relocating fixtures is not a compensable item in a condemnation proceeding. (County of Los Angeles v. Signal Realty Co., 86 Cal.App. 704, 710 et seq. 261 P. 536; Central Pac. R. Co. of California v. Pearson, 35 Cal. 247, 263.)

Hence the trial court properly disallowed defendants' claim for such items.


McCOMB, Justice.

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

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