SACRAMENTO SAN JOAQUIN DRAINAGE DIST v. TRUSLOW

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District Court of Appeal, Third District, California.

SACRAMENTO & SAN JOAQUIN DRAINAGE DIST. v. TRUSLOW et al.

Civ. 8226.

Decided: June 24, 1954

Earl S. Patterson, Los Angeles, William B. Borthwick, Beverly Hills, Carl E. Rodegerdts, Woodland, for appellant Truslow. Chalmers, Cowing & Sans, Woodland, for appellant Irrigation Dist. E. L. Means, James F. Roach, Woodland, for appellant Yolo County and others. Edmund G. Brown, Atty. Gen., Walter S. Rountree, Deputy Atty. Gen., for Drainage Dist. Mento & Buchler, George K. Littlefield, Sacramento, for respondent King.

On petition for rehearing appellant Truslow points out that this Court did not in its opinion dispose of his contention that he was entitled to have the award in his favor modified by the addition thereto of interest from the time when, prior to trial and judgment, possession of the property was taken by the condemnor to the time when the award in his favor was paid into court for him. It has been held that just compensation for property taken ought to include the value of the loss of use arising where possession is so taken and that this value may be measured by legal interest at the rate of 7% per annum for that period upon the award. Metropolitan Water Dist. of Southern California v. Adams, 16 Cal.2d 676, 107 P.2d 618; see also Los Angeles County Flood Control District v. Hansen, 48 Cal.App.2d 314, 119 P.2d 734. This modification cannot be made in favor of appellant Truslow because the reason of the rule under which it is granted does not here apply. Interest is allowed on the theory that where such prior possession is taken the one entitled to the use of the property will not be adequately compensated by an award of damages for the value of the property taken. Truslow's interest in the property taken was a reversionary interest, he having leased the land to King. He, therefore, was not entitled to the use of the property and since, as has been seen, the taking of a part of the leased property did not abrogate the lease, even pro tanto, Trustlow has suffered no loss through the prior possession taken by the condemnor. That loss, if any, has fallen upon King. We cannot, therefore, modify the award to Truslow.

King has throughout been a respondent in the appeals taken by Truslow and by the Reclamation District. It is a matter of grave doubt, therefore, he not having appealed from the judgment fixing his award, that this Court has appellate jurisdiction to modify his judgment by adding interest to the award. But if we assume such jurisdiction exists we could not upon this record so modify his judgment. The first time that he made the request was when he filed his answer to Truslow's petition for a rehearing, in which he opposed the granting of that application. Noting apparently that Truslow was asking an award of interest, King took the position that his status was identical with Truslow's and he, therefore, asked this Court to modify the judgment in his favor by adding interest thereto. We have nothing before us to tell us the status of the judgment in favor of King which he, as respondent, seeks to have us modify. For aught that appears here that judgment may not belong to him, or may have been satisfied, in which latter event it would no longer exist for purpose of modification. The only information we have upon the matter comes through the contention on appeal by Truslow that during the time intermediate the trial and judgment King had assigned all of his interest in the award made to him. Nowhere has this assertion been controverted by any party to this record. We deny King's application for modification on the ground that it comes too late and that in the state of the record no basis exists for such modification.

The petition for rehearing is denied.

PER CURIAM.

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