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District Court of Appeal, Second District, Division 1, California.

The PEOPLE of the State of California, acting by and through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Appellant, v. Fred J. RUSSELL et al., Defendants and Respondents.*

Civ. 21413.

Decided: August 09, 1956

George C. Hadley, William E. Fisher, Jr., Los Angeles, Robert F. Carlson, Sacramento, for appellants. Hodge L. Dolle, Los Angeles, for respondents.

This is an appeal by the plaintiff from a judgment in a condemnation action wherein the defendant was awarded severance damages in the sum of $33,499.83.

The action was brought to acquire an easement for public road and highway purposes over property described in the complaint. The complaint alleges that the parcel to be taken is a part of a larger parcel and the prayer asks that damages incidental to the taking be ascertained and assessed. The answer admits that the parcel to be taken is only a part of a larger parcel and alleges that the taking and the construction of the improvement cause a damage. The issue of damages is therefore joined by the pleadings of the parties.

The parcel to be taken was unimproved, about 287 feet in length and varied in width from 6 feet to 28 feet and was about 5,064 square feet in area. That parcel was a part of a larger parcel all owned by the defendant. The larger parcel was generally rectangular in shape with an area of about 105,000 square feet. The entire property in question was zoned for commercial usage, fronting and abutting upon the north side of a county road called Firestone Boulevard, hereinafter referred to as the County road. The County road consisted of a dedicated right of way 52 feet in width, of which the center 28 feet had been paved allowing for vehicular and other travel in both directions and complete with curbs and gutters on each side. The County road ran parallel to, and adjoined on the south side, State Highway Route No. 174, also known as Firestone Boulevard, hereinafter referred to as the State highway. There was no connection or paved crossover between the State highway and the County road along their common boundary. Figure 1 illustrates the ‘before’ position and measurements of the defendant's property and its relationship to the roadways. Figure 2 illustrates the ‘after’ position and measurements of the defendant's property and its relationship to the roadways.

Figure 1—Before Construction.

Figure 2—After Construction.

The relocation of the County road was necessitated by the widening of the State highway for the construction of a railroad overpass. The reconstruction of the County road resulted in the elimination of a 12-foot strip on the south side of the County road. In other words, the County road was reduced from 52 feet to 40 feet in width, or a reduction of about 23 percent, although the paved portion of the road remained the same. In addition, a paved connection between the County road and the State highway was constructed where Elmcroft Avenue and the State highway connect.

The evidence indicated that respondent's damages were not based upon any loss of light, air or view with respect to the County road, thereby resolving the matter to the question of loss or impairment of access.

Appellant asserts that the sole question presented by this appeal is whether the trial court erred in not ruling as a matter of law that respondent's easement of access in and to the abutting County road had not been substantially impaired. It is appellant's contention that since the uncontradicted evidence showed that the road had been reconstructed in exactly the same relationship to the land as to the grade, width of roadway, and intervening parkway strip, the only difference being the elimination of an unimproved 12 foot wide strip on the other side of the County road separating and dividing that road from a heavily traveled State highway, there was no substantial loss or impairment of respondent's right of access.

The property in question was a part of a subdivision known as Tract No. 16767, apparently developed in about 1950. The political subdivision having control of subdivisions at that time imposed certain conditions and requirements on the subdividers, among such conditions and requirements being that a road (the County road here) 52 feet in width be dedicated to the County; that, at the property owners' expense, it be paved with a roadway 28 feet in width; that it be provided with curbs and gutters and that a 12-foot parkway and sidewalk area be provided on each side of the paved and curbed roadway. The subdivision map was recorded on October 31, 1950. Apparently, the subdividers complied substantially with all of the conditions and requirements made by the political subdivisions concerned with the property.

As stated in Bacich v. Board of Control, 23 Cal.2d 343, at pages 349–350, 144 P.2d 818, at page 823: ‘It has long been recognized in this state and elsewhere that an owner of property abutting upon a public street has a property right in the nature of an easement in the street which is appurtenant to his abutting property and which is his private right, as distinguished from his right as a member of the public. That right has been described as an easement of ingress and egress to and from his property or, generally, the right of access over the street to and from his property, and compensation must be given for an impairment thereof.’

Also, in People v. Ricciardi, 23 Cal.2d 390, at page 397, 144 P.2d 799, at page 803, the court stated: ‘The courts of this state, from time immemorial and in cases too numerous to mention, have declared and enforced the abutting property owner's right to a free and convenient use of and access to the highway on which his property abuts. [Citing cases.] It was declared in the case of Eachus v. Los Angeles, etc., Ry. Co., supra, 103 Cal. 614, at page 617, 37 P. 570, 42 Am.St.Rep. 149, that this right of ingress and egress attaches to the lot and is a right of property as fully as is the lot itself and any act by which that easement is destroyed or substantially impaired for the benefit of the public, is a damage to the lot itself, within the meaning of the constitutional provision under which the owner is entitled to compensation.

‘It is also the settled law that: ‘An abutting owner has two kinds of rights in a highway, a public right which he enjoys in common with all other citizens, and certain private rights which arise from his ownership of property contiguous to the highway, and which are not common to the public generally; * * *. An abutting landowner on a public highway has a special right of easement and user in the public road for access purposes, and this is a property right which cannot be damaged or taken away from him without due compensation. [Citing cases.]’ Lane v. San Diego Electric Ry. Co., 208 Cal. 29, 33, 280 P.109, 111.'

In Rose v. State of California, 19 Cal.2d 713, at pages 727–728, 123 P.2d 505, at page 514, the court said: ‘The abutting owner's easement of access arises as a matter of law * * * and its nature and extent have been set forth in the numerous decisions which have considered the question. Thus, it is established that the easement of access is a matter of law peculiar to the individual owner, and an unreasonable interference with such an easement is an injury necessarily different from the injury suffered by the general public. * * * It is an easement in the public highway upon which his land fronts. [Citing cases.] The right extends to a use of the highway for purposes of ingress and egress to his property by such modes of conveyance and travel as are appropriate to the highway and in such manner as is customary or reasonable. See Lewis, Eminent Domain, 3d Ed., p. 190.’

The appellant here contends that the right of access does not extend to the full width of the dedicated right-of-way, but only to the paved portion thereof and that therefore there was no substantial loss or impairment of respondent's right of access since a duplicate paved portion of equal size has been provided.

In support of its contentions appellant cites Rose v. State of California, supra; Beckham v. City of Stockton, 64 Cal.App.2d 487, 149 P.2d 296; McDonald v. State of California, 130 Cal.App.2d 793, 279 P.2d 777; Brown v. Board of Supervisors, 124 Cal. 274, 57 P. 82, and Bigley v. Nunan, 53 Cal. 403.

All of the cited cases are distinguishable from the case now before us. In the Beckham case the complainant owned property, no part of which was taken for construction, and which was beyond the intersection and within the first block from the street in question. In the construction an underpass was made and as a result thereof claimants could no longer go directly from their property across the next intersecting street and to the downtown area. The court held that mere inconvenience and circuity of travel beyond an intersecting street resulting from the construction of an improvement therein do not furnish a basis for recovery of damages by landowners whose properties abut on a street which intersects the street on which the improvement is constructed; that in order for the landowner to recover there must be an infringement of some right which he possesses in connection with his property; and such property right is that of reasonable use of the street fronting the property in either direction to the next intersection. Such right the plaintiffs still had.

In the McDonald case, plaintiffs claimed damages because they formerly passed directly across the county road, upon which their property fronted, to and into a state highway which lay next to and parallel with the county road. The state had constructed a wall 11 feet inside of the county road thus making direct passage to the state highway impossible, and necessitating travel on the county road to the next intersecting street before the state highway could be entered. A demurrer to the second amended complaint was sustained because the pleadings showed that appellants did not own property abutting on the state highway and did not have direct access thereto. The appellate court stated, 130 Cal.App.2d at page 797, 279 P.2d at page 780: ‘However, appellants do not complain of the fact that the wall was placed within the original surface area of the county road rather than upon its common boundary with the state highway. They claim only that their abutters' rights in the state highway have been damaged. * * * Thus, the real issue presented is whether or not the appellants, upon the construction of the state highway, ipso facto acquired a right to have no barrier erected between said state highway and that portion of Plumas Street [county road] upon which their properties abutted.’

Brown v. Board of Supervisors, supra, 124 Cal. 274, 57 P. 82, merely holds that the narrowing of a street is not ipso facto an impairment of the right of access. The board of supervisors of the city and county of San Francisco passed an order declaring the northerly 31 feet of Turk Street to be closed and vacated. The owners of the lands abutting upon the southerly side of the street instituted proceedings for a review of the action of the board and a judgment annulling the order upon the ground that in adopting it the board acted in excess of its jurisdiction. The court held that the act of the board was a legislative act performed in the exercise of a discretionary power intrusted to them as a legislative body and that it was not the exercise of any judicial function which may be reviewed upon certiorari. In answer to the contention that the board had no jurisdiction to adopt the order without at the same time providing for an assessment of damage that would be sustained thereby and providing for its payment, the court stated, 124 Cal. at pages 280–281, 57 P. at page 83: ‘The property which an abutting owner has in the street in front of his land is the right of access and of light and air, and for an infringement of these rights he is entitled to compensation. * * * The appellants herein do not, however, claim that the reduction in the width of the street will in any respect interfere with their enjoyment of light and air, or that access to their lots is in any degree impaired. * * * The damage which the appellants may sustain by reason of a diminution in value of their lands is consequential, and damage for which they are not entitled to compensation. (Citing cases.)’

Bigley v. Nunan, supra, 53 Cal. 403, was not a condemnation proceeding but was an action to abate a nuisance caused by the erection of a fence in the highway in front of plaintiff's property, and for damages. The access from the plaintiff's lot to the street had not been cut off or impeded. The court held that if plaintiff and his immediate neighbors had more occasion to pass through the street than the public at large, this was an inconvenience in degree only and was not an injury in kind different from that sustained by the public; that the nuisance may be abated or removed, and to give damages on account of the decreased value of the land would be to give damages for all the injury the premises would ever sustain, which would be clearly wrong.

In a majority of the cases in other jurisdictions the right of an owner of property to compensation for damages suffered by the narrowing of a street in front of his premises has been sustained, even where the portion vacated is on the opposite side of the street. 18 Am.Jur. 860; 49 A.L.R. 1255. In City of Tulsa v. Hindman, 128 Okl. 169, 261 P. 910, 55 A.L.R. 891, it was held that where a city widens or opens a street for automobile and motor-truck traffic to its entire width, thereby consuming all space theretofore assigned and set apart for sidewalks or footroads, it is liable to abutting property owners for any consequential damages resulting to such property.

In Fry v. O'Leary, 141 Wash. 465, 252 P. 111, 49 A.L.R. 1249, the south 13 feet of a street were vacated over the protests of the landowners whose property abutted the opposite side. The court in holding that the resulting damage was compensable, stated, 252 P. at page 113: ‘We think it also clear under the uniform weight of authority that one who is an abutting property owner upon a street or alley, any portion or the whole of which is sought to be vacated, has a special right and a vested interest in the right to use the whole of the street for ingress and egress, light, view, and air, and, if any damages are suffered by such an owner, compensation is recoverable therefor. It follows therefore, that if appellants' light, air, view, or access is materially diminished, as alleged in the complaint, they are entitled to have the same passed upon by a jury regularly impaneled to determine the amount thereof. Ridgway v. City of Osceola, 139 Iowa 590, 117 N.W. 974.

‘Respondents contend that the vested interest of an abutting property owner in a street extends only to the middle of the street, and that therefore appellants are not abutting property owners as to the 13 feet vacated, which is across the street. But this position is untenable. Carried to its logical conclusion, the council could vacate all the street opposite appellants' property, leaving but a 30-foot street, and still appellants have no cause for complaint because not abutting owners. Yet there can be no doubt that, under most circumstances, property on a street only 30 feet in width would not be as valuable as on one twice as wide, for there would be only half as much space for light, air, view, and means of access. An abutting property owner's vested interest is to the full width of the street in front of his land, and he is entitled to use the whole thereof for egress and ingress, light, air, and view, and for any substantial or material diminution of any of these rights he is entitled to recover in damages.’

Appellant further contends that the trial court, as a matter of law, must make a finding as to whether the abutter's rights of access have been substantially impaired, prior to submitting the matter to the jury. It is true that it is within the province of the trial court, and not the jury, to pass upon the question whether under the facts presented the abutting landowner's right of access will be substantially impaired. However, this the trial court did when it ruled on the admission of evidence and in its instructions to the jury. Also, if the court does not make special findings on the issue its findings thereon are implicit in the verdict awarding compensation. People v. Ricciardi, supra, 23 Cal.2d 390, 144 P.2d 799.

Two witnesses testified for respondent and each stated that it was his opinion that there was a damage to the remaining parcel. One witness stated that it was his opinion that such damage was $69,373, and the other testified that it was his opinion the damage was $68,034. Each testified that by reason of the relocation and construction of the County road the highest and best use of respondent's property had changed from a retail commercial development to a residential development. The court and jury viewed the property, the area and the constructed improvement. The trial judge was in a position to and, in our opinion, he did fairly exercise his discretionary power. His view of the property and of the construction by the state is independent evidence to support the determination or finding implicit in the verdict that an impairment of access existed. Neel v. Mannings, Inc., 19 Cal.2d 647, 654, 122 P.2d 576; Wheeler v. Gregg, 90 Cal.App.2d 348, 366, 203 P.2d 37; City of Oakland v. Adams, 37 Cal.App. 614, 617, 174 P. 947; Hatton v. Gregg, 4 Cal.App. 537, 540–541, 88 P. 592. In the case of County of San Diego v. Bank of America National Trust & Savings Ass'n, 135 Cal.App.2d 143, at page 149, 286 P.2d 880, at page 884, the court stated as follows: ‘It is the rule in California that in a condemnation action, in absence of a showing of passion or prejudice, the finding of a jury when supported by substantial evidence will not be set aside on appeal. [Citing cases.]’

Also, in Rose v. State of California, supra, 19 Cal.2d 713, at pages 728–729, 123 P.2d 505, at page 514, the court said: ‘It is well settled that where there is evidence to support a finding that substantial and unreasonable interference with the landowner's easement of access or right of ingress and egress has been caused as the result of an obstruction in the street or highway on which his property abuts, an appellate court will not say as a matter of law that such finding is erroneous. O'Connor v. Southern Pacific R. Co., 122 Cal. 681, 55 P. 688; Smith v. Southern Pacific R. Co., 146 Cal. 164, 79 P. 868, 106 Am.St.Rep. 17; Fairchild v. Oakland & Bay Shore Ry. Co., 176 Cal. 629, 169 P. 388.

‘The issues before the trial court in the case at bar were, whether plaintiffs' right of access to Jackson Street was substantially and unreasonably impaired by the construction of the subway, and, if so, the amount of damage suffered as the result of such interference. These matters are for the trier of the facts and only where the evidence does not support a finding of substantial and unreasonable interference should the court decide the issue as a matter of law.’

The case of Anderson v. State of California, 61 Cal.App.2d 140, 142 P.2d 88, holds that the view alone will support a verdict if it is within the range of testimony. The trial court heard the testimony of all witnesses, received and examined all exhibits, viewed the property, and reweighed the evidence before denying appellant's motion for new trial. See, People v. Adamson, 118 Cal.App.2d 714, 725, 258 P.2d 1020.

Appellant further contends that there were errors of law committed which were prejudicial to it. It is claimed that the testimony of the witness Little for the respondent should have been stricken. The substance of the testimony of the witness was that before the construction the remaining property was adapted to commercial activities and that after the reduction of the street the remaining property was no longer commercial; that the County road is now too narrow to service a commercial development and that the remaining property cannot now be utilized for commercial activities and is therefore less valuable. The testimony was proper and the motion to strike it was properly denied. Substantially the same situation prevailed as to the testimony of respondent's witness Ross.

It is our conclusion that there was ample evidence to support the judgment and there was no prejudicial error to appellant.

The judgment is affirmed.

FOURT, Justice.

WHITE, P. J., and DORAN, J., concur.

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