CITY OF LONG BEACH v. Pacific Electric Railway Company, a corporation, Appellant.

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District Court of Appeal, Second District, Division 3, California.

CITY OF LONG BEACH, a municipal corporation, Plaintiff and Respondent. v. PACIFIC ELECTRIC RAILWAY COMPANY, a corporation, et al., Defendants. Pacific Electric Railway Company, a corporation, Appellant.

Civ. 19863.

Decided: September 14, 1954

C. W. Cornell, E. D. Yeomans, Roger M. Sullivan, Randolph Karr, Los Angeles, for appellant. Irving M. Smith, City Atty., Joseph B. Lamb, Asst. City Atty., Long Beach, for respondent.

This is an eminent domain action by the City of Long Beach to acquire an easement for public street purposes over a right of way of the defendant Pacific Electric Railway Company. An interlocutory judgment, condemning the land and awarding defendant $1 as damages, was entered. The railway company (referred to as defendant) appeals from the judgment.

The briefs do not contain a description of the right of way or the land sought to be condemned. The description herein is based upon a map which was received in evidence.

The right of way is located at the northwest corner of Long Beach Boulevard and Willow Street. Long Beach Boulevard extends north and south and Willow Street extends east and west. Defendant's right of way adjoins the west line of Long Beach Boulevard and the north line of Willow Street, and it extends west of Long Beach Boulevard a distance varying from 94 feet to 140 feet and it extends north of Willow Street more than 480 feet. The southeast part of the right of way is not a right angle corner—the west line of Long Beach Boulevard, beginning at a point about 50 feet north of Willow Street, extends diagonally to the southwest to the north line of Willow Street at an angle of approximately 45 degrees. The railway tracks extend north and south on the right of way and are near the west line of Long Beach Boulevard, except that at a point in said diagonal line of the boulevard (about 30 feet north of Willow Street) the tracks cross the diagonal line and extend across Willow Street.

The west part of the right of way, beginning at a point about 70 feet east of the west boundary thereof and extending north about 480 feet, was leased by defendant to a lumber company for use as a lumber yard.

On January 30, 1951, the City Council of Long Beach adopted a resolution to widen Willow Street 20 feet for a distance of 107.76 feet west of the west line of Long Beach Boulevard (that is, west of the diagonal line of the boulevard—where the right of way is 107.76 feet wide), by placing the north line of Willow Street 20 feet north of its present north line. The resolution recited that, in order to widen Willow Street, it was necessary to acquire an easement for public street purposes over a strip of land 20 feet in width (particularly described therein,—but generally described as the south 20 feet of defendant's right of way, which adjoins the north boundary of Willow Street). The north boundary of said 20-foot strip is 107.76 feet long, and the south boundary, which adjoins the north boundary of Willow Street, is 94.77 feet long. The east end of the strip adjoins said diagonal line of Long Beach Boulevard. The northeast corner of the strip is about 2 feet west of the tracks, and the southeast corner is about 15 feet west of the tracks. In other words, there is a triangular space between the east end of the strip and the tracks—the tracks do not cross the strip of land sought to be condemned.

On February 19, 1951, pursuant to said resolution, the City of Long Beach commenced this action to obtain an easement over the south 20 feet of defendant's right of way. At the time this action was commenced, the lumber company owned a building which was on said strip of land, and the defendant owned two poles and connecting overhead facilities which were on the strip of land. At the time of trial the building had been removed, and counsel for appellant stated that the building had been moved back ‘through negotiation’ between the owners of the lumber company and plaintiff.

A stipulation of facts, which was received in evidence, stated in substance: If the property over which plaintiff seeks to acquire an easement ‘is to be valued by the Court at other than a nominal valuation as a crossing,’ the value shall be fixed at $2,150. The widening of Willow Street ‘as proposed will require relocation of two poles and connecting overhead facilities of defendant’ at a cost of $914, but will not require any other structural changes in facilities of the defendant. The building occupying a portion of the property and belonging to a tenant of defendant has been removed therefrom at the expense of plaintiff and the property being condemned is now vacant except for two poles supporting overhead facilities of defendant. The use of the property for street use will not interfere with its use for railroad tracks and the railroad can exist with the street in place as proposed except that the area available for railroad purposes is reduced by the mount of area taken for a street. The property is now owned by Long Beach Amusement Co., subject to the easement of defendant for railroad purposes. A map (showing the streets, right of way, and tracks) similar to the map attached to the complaint may be introduced in evidence. Three photographs of the property, which plaintiff will offer in evidence, may be received in evidence. (Six other exhibits offered by plaintiff were received in evidence,—which exhibits were the resolution of the city council, a 1906 resolution of the board of supervisors, and four deeds.)

The court found, in part, that: the City of Long Beach is the municipal corporation and is in charge of the public use for which an easement is sought herein; the proposed widening of Willow Street constitutes a widening of a presently existing crossing of Willow Street over the tracks and right of way of the defendant, and that such crossing is a transverse or lateral crossing and does not constitute a longitudinal taking of the property of said defendant; the property over which an easement is sought to be acquired is now vacant, except that there are located thereon two poles and connecting overhead facilities of defendant, which it will be necessary to remove, but no other structural changes by said defendant will be required; defendant is entitled to be paid $1 damages for the taking of the easement and is not entitled to any damages by reason of structural changes. The judgment provided that, subject to the right of defendant to operate a railway thereover, the property was condemned to the use of plaintiff for the purpose of widening Willow Street; and that the award for the taking thereof was thereby fixed at $1.

Appellant contends that the court erred in awarding nominal damages for the taking of the easement; that the court should have awarded $2,150—the amount which it was stipulated should be fixed as the value if the property ‘is to be valued by the Court at other than a nominal valuation as a crossing’; and that the finding that the crossing involved here is a transverse crossing is not supported by the evidence. Appellant argues that the property to be taken herein is not a part of the actual crossing of the railway tracks.

There were no railway tracks upon the strip of land sought to be condemned, and that land was not used for railway purposes other than to mantain thereon two poles which supported overhead facilities of defendant. A part of the strip of land (approximately the west two-thirds thereof) was used as lumber yard by a tenant of defendant. Defendant maintained a spur track upon the leased part of its right of way for the purpose of serving the lumber company with freight transportation. An easement for a public street across the right of way of a railroad company may be granted for nominal compensation. See City of Los Angeles v. Zeller, 176 Cal. 194, 201, 167 P. 849. In City of Los Angeles v. Allen, 32 Cal.App. 553 at page 561, 163 P. 697, at page 701, it was said: ‘There is an important difference between the extension of a street crossing over a railroad track and a taking for the purpose of constructing a street longitudinally covering a right of way. ‘The right to take longitudinally is very different from the mere right to cross, for in the one case the rights of the railway company are materially impaired, while in the other the taking is such that both uses can stand together.’ Elliott on Railroads, 2d Ed. § 1098. * * *.' In City of Oakland v. Schenck, 197 Cal. 456, at page 460, 241 P. 545, at page 546, it was said: ‘In condemning a right of way for a street across a railroad right of way, the inquiry must be directed to ascertaining the extent to which the value of the company's right to use the land for railroad tracks will be diminished by the opening of the street across it. If the opening of the street across the railroad tracks in this case does not unduly interfere with the companies' use for legitimate railroad purposes, then their compensation should be nominal.’ In the case just cited the city sought to condemn, for the purpose of opening a street, a strip of land owned by railroad companies. A part of the strip of land was not devoted to railroad uses, and the trial court found that the value of that part was $300. The trial court also found that the part of the land which was in use for a railroad right of way was of the value of $1.00. No exception was taken to the award of $300. On appeal by the railroad companies, they contended that the court erred in allowing only $1.00. The court said, 197 Cal. at page 459, 241 P. 545, that the railroads, prior to the proceeding to condemn, had an exclusive right to use the land for tracks upon which to move their cars, and that the city did not propose to interfere with that right otherwise than by the opening of the street across the tracks for a public use. In that case the court also said, 197 Cal. at page 462, 241 P. at page 547: ‘As the right to open a street across the railroad tracks was all that the city sought to obtain by the proceedings in condemnation, it was not bound to acquire and pay for the fee in the land over which the street is opened. The extent to which the value of the companies' right to use the land for railroad tracks was unduly diminished by opening the public street across it was the only question to be determined by the jury.’ The rule that nominal damages may be awarded to a railroad company for the condemnation of its right of way for a public street crossing is based principally upon the fact that a street which crosses the tracks does not unduly interfere with the company's use of its tracks, and that such a street use can be consistently imposed upon the railroad use, since the two uses of the right of way (for railroad traffic on the tracks, and for street traffic which crosses the tracks) may exist or stand together. In other words, if a street is placed across railroad tracks the rights of the railroad company are not materially impaired, since the company can still use its tracks. In the present case, Willow Street now crosses the tracks, but the plaintiff is seeking to condemn a 20-foot-wide and 107-foot-long strip of land which is west of the tracks—the strip commencing a few feet west of the tracks and extending 107 feet to the west boundary of defendant's right of way. The strip of land, in its lengthwise dimension (107 feet), is parallel to the north side of Willow Street. By reason of the length and location of such strip, the taking of the strip for street purposes is similar to the taking of a longitudinal section of a railroad right of way for such use. This is not a case regarding a mere right to place a street across railroad tracks. In City of Los Angeles v. Zeller, supra, 176 Cal. 194, 167 P. 849, which was a condemnation case against a railway company, the trial court awarded $10 for a strip of land 35 feet wide and 1600 feet long. The judgment therein was reversed. In that case it was said, 176 Cal. at page 201, 167 P. at page 851, in quoting from an opinion of Justice Henshaw on a prior hearing of the case: “If 1,600 feet may thus be taken, why not 160 miles * * *. I can perceive no parallelism between this case and a mere right of way for a highway across a steam railroad right of way'.' The principles of law with reference to allowing nominal damages when there is merely a taking for a street crossing over railroad tracks are not applicable here. The west two-thirds of the strip of land, now in use as a lumber yard, cannot of course be used both as a street and a lumber yard. The taking of the strip interferes materially with the railroad company's right to lease its land to the lumber company and to furnish freight transportation to it. The court erred in allowing nominal damages only. It should have allowed $2,150, under the stipulation, as compensation for the property taken.

Appellant contends further that the court erred in refusing to award any damages for structural changes which appellant will be required to make; that the court should have awarded $914 which was the stipulated cost for relocation of the two poles and connecting overhead facilities which are on said strip of land. Where land is condemned for the purpose of placing a street across railroad tracks, the expense incurred by the railroad company in making structural changes, which are required as the result of placing the street across the tracks, should be borne by the railroad company. See City of Oakland v. Schenck, supra, 197 Cal. 456, 241 P. 545. In the case just cited, it was said, 197 Cal. at page 462, 241 P. at page 547: ‘The expenses that will be incurred by the railroad companies in making structural changes, such as filling the portion of the tracks between the rails, and two feet outside, with planks, and other crossing changes, in order that the railroad may be safely operated, necessarily result from the maintenance of a public highway, under legislative sanction, and must be deemed to have been taken into account by the railroad companies when they accepted the privileges and franchises granted by the state.’ (Italics added.) As above stated, however, the present case does not involve a mere right to place a street across railroad tracks. The discussion above, regarding legal principles pertaining to compensation for taking the land, is applicable here. The court should have awarded $914, under the stipulation, for appellant's expenses in making required structural changes.

Appellant made the further contention in its opening brief that the court was without jurisdiction to order condemnation for the reason that plaintiff failed to obtain the consent of the Public Utilities Commission to make structural changes in existing railroad facilities. It appears from appellant's reply brief that appellant has withdrawn this contention. It is there stated that the jurisdiction of the Public Utilities Commission does not appear to be in issue, as respondent has removed that question in its admission that the property is non-operating and commercial. It is not necessary to discuss this contention.

By reason of the above conclusions, it is not necessary to discuss other contentions.

In view of the Stipulation of Facts filed herein and by reason of the conclusions hereinabove stated, this court makes a finding of fact as follows: ‘That the defendant Pacific Electric Railway Company is entitled to be paid $2,150.00 damages for the taking by plaintiff of the easement described in the complaint and is entitled to be paid $914.00 for damages by reason of structural changes.’

It is hereby ordered (1) that paragraphs V and VIII of the Findings of Fact be stricken from the Findings of Fact, and (2) that the finding of fact hereinabove made by this court be included in the Findings of Fact in lieu of said paragraph VIII.

The judgment is reversed, and the superior court is directed to render an interlocutory judgment herein which shall be in substance the same as the interlocutory judgment entered herein on March 5, 1953, except that the judgment to be rendered shall provide that the award for the taking of the easement is fixed at $2,150 and the award by reason of structural changes is fixed at $914.

PARKER WOOD, Justice.

SHINN, P. J., and VALLÉE, J., concur.