SACRAMENTO AND SAN JOAQUIN DRAINAGE DISTRICT v. Peter J. Jarvis and Beulah Jarvis, Appellants.*

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District Court of Appeal, Third District, California.

SACRAMENTO AND SAN JOAQUIN DRAINAGE DISTRICT, acting by and through The Reclamation Board of the State of California, Plaintiff and Respondent, v. Peter J. JARVIS, Beulah Jarvis, et al., Defendants, Peter J. Jarvis and Beulah Jarvis, Appellants.*

Civ. 9126.

Decided: September 04, 1958

Peter J. Jarvis and Beulah Jarvis in pro. per. Edmund G. Brown, Atty. Gen., by Raymond H. Williamson and Marcus Vanderlaan, Deputies Atty. Gen., for respondent.

This is an appeal from a judgment entered upon a jury's verdict awarding appellants $1,500 for 1.062 acres of land condemned by respondent.

The complaint, which was filed on August 18, 1954, alleged that respondent sought to condemn the fee simple title to the land and that the taking of said estate and interest was necessary for the construction of a levee. On the same day the court fixed $1,500 as the amount reasonably adequate to provide for payment of just compensation for the taking of appellants' property. Upon deposit of that sum with the clerk of the court an ex parte order for the taking of immediate possession issued, and, pursuant thereto, respondent entered upon the land and constructed a levee thereon. Thereafter trial was had and on February 3, 1956, the jury returned its verdict which found the fair market value of the condemned property to be $1,500 as of February 1, 1956. Judgment was entered upon the verdict on April 10, 1956. Appellants' motion for a new trial was denied and they noticed an appeal from the judgment.

On this appeal an opening brief was filed on appellants' behalf by an attorney who did not represent them at the trial. Assigned as error therein is the trial court's sustaining of an objection to testimony of a witness who lived across the street from the appellants. She was called by appellants as a witness on their behalf. She was asked how much frontage she had on the street. Counsel for respondent objected on the ground that the witness' property was not being condemned. The objection was sustained. The record shows the following:

‘[Mr. Hibbitt]: Q. So that you still have property that faces on Rio Linda Boulevard. And do you know the Jarvis property? A. Yes, sir, I do.

‘Q. With reference to your property, the Jarvis property is directly across the street; isn't that right? A. Yes, it is.

‘Q. And about how much frontage do you have on Rio Linda Boulevard at that place?

‘Mr. Vanderlaan: I will object to that, your Honor. We are not condemning this lady's property.

‘The Court: Objection sustained.

‘Mr. Hibbitt: We are trying to establish values, your Honor, and I think probably by comparative values here, I am bringing this lady in to show the value of her adjacent property.

‘Mr. Vanderlaan: I am sure that is not admissible, your Honor. She is not an expert.

‘The Court: Objection sustained.’

Counsel for appellants made no offer of proof that the witness would testify as to what she had recently paid or been offered for her property. However, such offer of proof would have been futile as at the time of trial it was the long established rule that, as declared by our Supreme Court in People v. La Macchia, 41 Cal.2d 738, at page 744, 264 P.2d 15, at page 20, ‘witnesses ‘cannot, upon the direct examination, he allowed to testify as to particular transactions, such as sales of adjoining lands, how much has been offered and refused for adjoining lands of like quality and location, or for the land in question, or any part thereof, or how much the * * * [condemning party has] been compelled to pay in other and like cases—notwithstanding these transactions may constitute the source of their knowledge’.'

Since the trial of the instant case our Supreme Court, in the case of County of Los Angeles v. Faus, 48 Cal.2d 672, 312 P.2d 680, has overruled the line of decisions laying down the above quoted rule, and now evidence of prices paid or amounts offered for similar property in the immediate vicinity is admissible on direct examination.

It is apparent that the ruling of the trial judge was based on decisions of the courts of this state which have since been overruled. It is also apparent that neither contract nor property rights have vested in either party by virtue of the previous decisions on the point here involved. Therefore, this case falls within the general rule that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation. Under such circumstances the decision must be reversed. See County of Los Angeles v. Faus, 48 Cal.2d 672, 312 P.2d 680, supra. See also People v. Murata, 161 Cal.App.2d 369, 326 P.2d 947.

Appellants have filed a closing brief in propria persona and make numerous contentions, including the contention that they have been denied their constitutional rights and have been deprived of their property without due process of law. In view of the fact that the judgment must be reversed it is unnecessary to discuss them in detail.

We deem it proper to state, however, that in view of the fact that an order for immediate possession was made, appellants will be entitled to interest upon whatever amount they are ultimately awarded, from the date of the order for possession. Code Civ.Proc. sec. 1249; Metropolitan Water District of Southern California v. Adams, 16 Cal.2d 676, 680–681, 107 P.2d 618. Appellants will also be entitled to compensation without deduction on account of any taxes or asssessments levied after respondent took possession of the property. People By and Through Department of Public Works v. Peninsula Title Guaranty Co., 47 Cal.2d 29, 35, 301 P.2d 1.

After this cause was orally argued before this court it was discovered that the judge presiding over the cause was a judge of the county in which the real property involved in this action is situated. Furthermore, the record did not disclose that the parties to the action had signed and filed a stipulation in writing waiving the disqualification of the trial judge as required by subdivision 6 of section 170 of the Code of Civil Procedure. This court then ordered the matter reargued for the purpose of determining whether the judgment was invalid because the cause was tried before a judge who was disqualified to act. At the time of oral argument respondent's motion to augment the record by including therein a certified copy of the minutes of the superior court of June 16, 1958, was granted. The record as augmented disclosed that the trial court had amended its minutes to show that prior to the calling of the jury roll the judge and the attorneys for the parties met in the judge's chambers where it was orally stipulated that each party would waive the disqualification.

By subdivision 6 of section 170 of the Code of Civil Procedure the legislature has provided that in an action brought in any court by or against the reclamation board affecting or relating to any real property, a judge of the superior court of the county in which such real property is located shall be disqualified to sit or act unless the parties to the action shall sign and file therein a stipulation in writing waiving such disqualification. The oral stipulation between the attorneys for the parties in the judge's chambers can not be said to meet the requirements of the subdivision.

Nor can it be said that the parties waived the disqualification. The record discloses that the matter of the judge's disqualification was raised at the earliest opportunity and that a conference in chambers immediately ensued. In this case the only inference that can be deawn from the record is that the parties did raise the matter at the earliest opportunity. Nor can it be said that the parties are estopped to raise the matter for an equitable estoppel can not be urged as a substitute for a statutory requirement of a written stipulation. Emerson v. Superior Court, 7 Cal.2d 685, 62 P.2d 363.

In view of the foregoing the judgment is reversed.

SCHOTTKY, Justice.

VAN DYKE, P. J., and PEEK, J., concur.

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