FAUS v. THE CITY OF LOS ANGELES

Reset A A Font size: Print

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

L.C. FAUS, Plaintiff and Respondent, v. THE CITY OF LOS ANGELES, a municipal corporation, etc., et al., Defendants and Appellants.

Civ. 29843.

Decided: July 28, 1966

Rober Arneberg, City Atty., Bourke Jones and Wledon L. Weber, Asst. City Attys., and Brian Crahan and Norman L. Roberts, Deputy City Attys., for appellants. Demetriou & Del Guercio and Richard A. Del Guercio, Los Angeles, for respondent.

By his complaint, denominated as one for declaratory relief, plaintiff asked that he be adjudged the owner of seven described parcels of real property situated in the center of public streets and formerly burdened with easements in the form of rights of way for use by electric railway.1  Invoking the doctrine of inverse condemnation, he also sought compensation for the taking of the subject parcels which plaintiff's predecessors, during a ten-year period from 1901 to 1911, had originally conveyed to three railway companies, defendants' predecessors, under deeds which provided for reversion of title and the right of re-entry upon the violation of the conditions specified in the several instruments.   Although the granting clause of each deed differed, each basically provided that the conveyance was an electric railway.   Thereafter tracks were constructed on each strip and street cars were operated thereover until May of 1955.   Such operations ceased following an order of the Public Utilities Commission, application for which was made by the companies in 1954, authorizing their abandonment.   The trial court found that the lands in question were granted to the railroads for railroad purposes, that such use of the lands had terminated and the easements therefore had been abandoned and that plaintiff was entitled to just compensation for the property taken.   By stipulation the value of the several parcels was fixed in a stated sum, the court determining the date of such valuation.   The appeal is by defendant City from the judgment and each part thereof.

 We consider first the contention that no abandonment of the easement has ever occurred;  in this connection it appears that bus service in place of street car service has been provided over the same general routes after the rails, ties and trolley wires were removed from the rights of way.   An easement acquired for railroad purposes may be lost by abandonment (People v. Ocean Shore Railroad, 32 Cal.2d 406, 417, 196 P.2d 570, 6 A.L.R.2d 1179);  the cited case also holds that whether there has been such an abandonment is ordinarily a question of fact.   In the present case, since each habendum clause in varying language conveyed a right of way “for the purpose of an electric railway” or “for an electric road” or for the maintenance of “railroad to be operated by electricity or some motive power other than steam,” the trial court doubtless adhered to the view that the use of the phrase “railroad right of way” was no mere surplusage, “for it is presumed that no clause or word in a deed was used without meaning or intent.' ”  (Ocean Shore Railroad Co. v. Doelger, 127 Cal.App.2d 392, 399, 274 P.2d 23, 28.)   Rejected, therefore, was appellant's contention that the primary purpose of the several conveyances was to provide for passenger service by the then prevalent means of interurban and intraurban public transportation; 2  despite the fact that such service has been, and is still being, provided albeit by motor coach, it was concluded that the various easements over the several parcels had been canceled, terminated and extinguished.   This conclusion is reached, says appellant, solely through a narrow interpretation of the deeds which offends against the “main purpose” doctrine consistently applied by California courts to preserve grants, dedications and gifts.   Such erroneous interpretation, it is accordingly asserted, warrants a reversal.

 Presumably to avoid the impact on the situation at bar of the holding in the Ocean Shore case (32 Cal.2d 406, 196 P.2d 570), namely, that the issue of abandonment is ordinarily a factual one for determination in the trial court, appellant insists that the criticized finding (n. 2) is not binding on an appellate court.   No extrinsic evidence having been received, “An appellate court is not bound by a construction of the contract based solely upon the terms of the written instrument without the aid of evidence [citations], where there is no conflict in the evidence [citation], or a determination has been made upon incompetent evidence [citation].”  (Estate of Platt, 21 Cal.2d 343, 352, 131 P.2d 825, 831.)   Also cited by appellant for the above proposition is Parsons v. Bristol Development Co., 62 Cal.2d 861, 866, 44 Cal.Rptr. 767, 402 P.2d 839, which discusses a group of decisions on the subject, disapproving some and distinguishing others.   But Parsons does not say, as urged by appellant, that the question here is purely one of law for this court.   Though we are thereby duty-bound to interpret the instruments in suit, we must accept the trial court's interpretation “if such interpretation is reasonable, or if [it] is one of two or more reasonable constructions of the instrument' [citations], or if it is ‘equally tenable’ with the appellate court's interpretation [citations].”  (62 Cal.2d 861, 866, 44 Cal.Rptr. 767, 771, 402 P.2d 839, 843.)   For reasons hereinafter stated, we believe that the construction given the various deeds is at least “equally tenable” with our own.

 We arrive at this determination in light of language in the deeds additional to that already mentioned.   Thus, not only do the instruments recite that the use or interest conveyed was for “the purpose of an electric railway,” but five of the seven conveyances expressly provide that the deed shall be null and void in the event of a failure to continue operation of the railroad.   Too, certain of the instruments declare that cessation of railway service for a period of six months shall constitute “a practical abandonment of the same,” while these and others expressly provide that the right of way is granted “on the express condition” that the grantee railroad company shall build and operate “a first-class electric railway on, over and along said said land.”   Finally, the habendum clause in at least two of the deeds grants the interest conveyed “forever” but subject to the express conditions therein set forth, to wit, the construction and operation of an electric railway.

The above provisions being given due consideration, the trial court did not rely solely on the words “electric railway,” nor did it, as further urged by appellant, ignore all other provisions of the grants.   A document, says appellant, must be read and analyzed as a whole in order to accord it proper interpretation.   This is presumably what was done at bar as well as in Rosecrans v. Pacific Elec. Ry. Co., 21 Cal.2d 602, 134 P.2d 245, where the court determined, in view of the provisions of the deed there pleaded, that a cause of action for forfeiture of defendant's right of way had been stated.   Perhaps because the deed in Rosecrans (dated September 17, 1908) was drawn at or about the same period as those here in suit (when public transportation was accomplished by rail to fit the need therefor peculiar to the same general area), similar language is found in the two instruments.   For example, the conditions of the Rosecrans deed provide that the grantee shall construct and operate an electrical railway on or before a stated date;  as with certain of the instruments here, the grant was made upon the “express condition” that the grantee shall stop passenger cars for the discharge and reception of passengers and that not less than 18 local passenger trains shall be operated each day over the right of way—in our case the grantee was called upon to operate “not less than ten local trains per day”;  and in Rosecrans, as here, the grant is made binding upon the grantee, its successors and assigns “forever” subject to the condition therein set forth.

The Rosecrans court reasoned that “the solution of the problem depends upon the correct interpretation of the condition in the light of the deed as a whole in order to ascertain the intention of the parties” (p. 606, 134 P.2d p. 247);  accordingly it determined that the wording of the instrument created a condition subsequent the breach of which, upon proper proof, would result in a forfeiture of the right of way.   Our case is even stronger since it is the law that “the rules of construction require a much stricter interpretation against the grantee of a condition subsequent involving a forfeiture than of an easement” (Tamalpais Land & Water Co. v. Northwestern Pac. R.R. Co., 73 Cal.App.2d 917, 929, 167 P.2d 825, 831)—and appellant in this latter regard concedes that the same rules of construction apply to an easement deed as to deeds generally.  (Kerr v. Brede, 180 Cal.App.2d 149, 150, 4 Cal.Rptr. 443.)   Listed in Rosecrans, as reflected by the language in the instrument, are several “factors” which support the determination reached;  the same “factors” are likewise found in the several instruments in suit.  “A comprehensive scheme” is set forth respecting the operation of the railroad;  the above scheme indicates “a definite plan embracing future contingencies”;  “permanency in the improvement and use of the right of way” is contemplated;  no intention is evidenced that the conditions be complied with for a limited period.   Other “factors” similar to those at bar could be mentioned, but of special significance is the additional Rosecrans condition that “the specified passenger service must be both established and maintained [emphasis added].”  This latter “factor” must be read with the prior one—that the grantors had in mind a definite plan “embracing future contingencies.”   In its reply brief, no mention of Rosecrans being made in its opening brief, appellant argues that the failure to maintain “passenger” service necessitated the conclusion there adopted and distinguishes that case from ours.   We are not persuaded that any such distinction follows as a matter of law from the above premise.   Too, as will now be shown, the so-called “substituted” motor coach service is not of such character as will serve to stay the abandonment of the easement.

Following the 1954 order of the utilities commission authorizing the abandonment of rail service by the Los Angeles Transit Lines, motor coach service was provided by that company over the same general routes;  this, although the order apparently authorized the substitution of trackless trolley service over the company's Alvarado line (No. 41) without mention of such substituted service over the lines in the area where the subject easements are located.   A further provision of the commission's order enjoined Transit Lines from alienating any portion of the rights of way for 180 days in order that the City of Los Angeles might acquire them for streets.   This acquisition was accomplished on October 18, 1955, by a final order of condemnation in which only Transit Lines was named;  the latter's interest condemned was for “public buildings and grounds.”   In 1956, continuing through 1962, appellant entered upon the rights of way and improved them for street purposes.  (The present action was commenced in 1960 after plaintiff, as noted earlier, had secured quit-claim deeds from the successors of the original grantors.)

The trial court found that the public transportation service furnished by Transit Lines, following the abandonment of its rail operations in May of 1955, did not meet the “electric railway” conditions of the deeds;  it also found that the bus service provided was not a substitute for an electric railway over the former rights of way.   Supporting these findings was evidence that the motor coach service did not use any portion of the land described in the deeds for loading and unloading passengers;  three was also testimony that very little use is made of the inside lanes (which would be within the subject rights of way) by the motor coaches involved.   Appellant does not deny that such are the facts;  it renews its argument, however, that the purpose of the deeds was to provide transportation and that such condition in the instruments is being met by the operation of motor coach service.   It makes the further claim that public street use of the railway rights of way is permissible under easements which arose when the surrounding areas were subdivided.   Says appellant:  “By these dedications and grants, subsequent to the establishment of the railroad, and under statutes then and now existing, a public street easement over ‘the right of way’ was established, subject to the railroad rights previously granted.”   Attention being given to this latter contention later, we consider the point that the above-described use of the right of way by busses, concededly minimal in extent, constituted substituted service sufficient to defeat plaintiff's claim of the easement's abandonment.   In Faus v. Pacific Elec. Ry. Co., 187 Cal.App.2d 563, 9 Cal.Rptr. 697, passenger service by rail over the rights of way there in suit was discontinued;  simultaneously with such discontinuance, defendant railway substituted a bus system of transportation on highways paralleling the right of way assertedly with the permission of the Public Utilities Commission.   The reason given for the discontinuance of passenger service being “changed economic conditions,” it was urged that the above circumstances were sufficient to defeat plaintiff's claim that the company's interest in the rights of way had been forfeited.   The appellate court held that the issues thus raised was one of fact for the trial court, a petition for hearing being subsequently denied by the Supreme Court.   If substituted service without any use of the right of way is a factual question, may not the same be said of the minimal use of the land in the present case?   To assert otherwise, it seems to us, would require a process of factual hair-splitting which is not the function of a reviewing court.   On the record before us we cannot say that the challenged finding was without substantial legal support.

 We return to the alternative claim that the subsequent dedication of public streets adjacent to the rights of way transferred a public street easement in the ways.   It appears that after the conveyance by respondent's predecessors of the subject right of way, public streets on either side of Crenshaw, Leimert and Santa Barbara were dedicated by subdivision map a somewhat similar situation developed on both sides of Vermont.   The subdivision maps show that the rights of way were separated from the subdivided lots by a colored line—the sketch reproduced in Wagner v.Chambers, 232 Cal.App.2d 14, 17, 42 Cal.Rptr. 334, typifies the situation on Vermont.   It is appellant's position that the dedication of land for a public street, when the dedicating instrument shows the street to be bounded by a railroad right of way, conveys an interest to one-half of the right of way abutting the street.   Although admitting that no case has been found to support its application to a subsequent grant of a highway abutting a railroad easement, appellant nevertheless relies on section 1112, Civil Code, declaring that “A transfer of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil of the highway in front to the center thereof, unless a different intent appears from the grant.”   With respect to two parcels (counts two and six) and a portion of a third (count seven), a different intent clearly appears from the grant to the subdividers in that the instruments “excepted the land underlying the easements or rights of way.”   As in Faus v. City of Los Angeles, 195 Cal.App.2d 134, 145, 15 Cal.Rptr. 783, we cannot adopt a purported intent contrary to the express exception found in the deed;  hence, “The reservations and exceptions contained in [the instruments] are such that no estate in the land constituting the right of way property was conveyed or purported to be conveyed * * *.”  (Hannah v. Southern Pac. R.R. Co., 48 Cal.App. 517, 522, 192 P. 304, 306.)   To the same general effect is Los Angeles City High School Dist., etc. v. Swensen, 226 Cal.App.2d 574, 578, 38 Cal.Rptr. 214, cited by appellant, that a conveyance of title to the center of a highway will not be implied where the deed shows a contrary intention.   Accordingly, whether it be claimed that the land underlying the railroad easement was impliedly granted by the subdivider either to the purchasers of lots in the subdivision or to appellant as grantee of a street easement adjacent to the railroad easement upon the theory of implied dedication, such claims must fail as to the parcels above mentioned.   As to the remaining land in suit, we deem it appropriate to reach the issue of their express or common law dedication (see examples mentioned in McKinney v. Ruderman, 203 Cal.App.2d 109, 115, 21 Cal.Rptr. 263) under our discussion of the further point that the abutting owners, assertedly indispensable parties, were not joined and that such nonjoinder fatally infects the judgment appealed from.

 Regarding the claim of implied dedication, applicable here only to those parcels not expressly excepted (as just mentioned) under the wording of the deeds, the existence of a public easement over the various properties would, if established, be a good defense to the present action in inverse condemnation.  (Frustuck v. City of Fairfax, 212 Cal.App.2d 345, 355, 28 Cal.Rptr. 357.)   Before proceeding to a consideration of the instant claim, however, it would be well to review briefly the law of this state governing the acquisition by the public of easement sin land where the title to the underlying fee remains in private ownership.   To constitute a valid and complete dedication there must be an intention by the owner, clearly indicated by his words or acts, to dedicate the lands to public use (City of Venice v. Short Line Beach Land Co., 180 Cal. 447, 450, 181 P. 658), and an acceptance either by public user or by formal resolution.   (Brown v. Bachelder, 214 Cal. 753, 7 P.2d 1027.)   Such intention may either express or implied, and is implied when the acts and conduct of the owner clearly indicate an intention to devote the land to the public use.  (City of Los Angeles v. McCollum, 156 Cal. 148, 103 P. 914, 23 L.R.A.,N.S., 378.)   But where the dedication of a highway is sought to be established by user, it must be shown that the user was adverse, continuous and with the knowledge of the owner for the required period of time (City of San Diego v. Hall, 180 Cal. 165, 179 P. 889) periods ranging from five to forty years have been held sufficient (Plummer v. Sheldon, 94 Cal. 533, 29 P. 947;  Barnes v. Daveck, 7 Cal.App. 487, 94 P. 779);  and the question of whether the use of the easement is adverse, or permissive and with the owner's consent, is ordinarily a question of fact—accordingly, on appeal all conflicts must be resolved in favor of the prevailing party and the evidence reviewed in the light most favorable to him.  (O'Banion v. Borba, 32 Cal.2d 145, 147–148, 195 P.2d 10.)   Perhaps the most recent comprehensive statement by the Supreme Court on the subject of public roads, rights to which become vested in the public by user, is contained in Union Transp. Co. v. Sacramento County, 42 Cal.2d 235, 267 P.2d 10;  it includes the declaration that “[w]hether the user was adverse is a question of fact to be determined from all of the circumstances of a case.”  (Pp. 240–241, 267 P.2d p. 12.)

 Appellant urges that no property rights were invaded due to the acquisition by the public of an easement in the parcels;  therefore, it asserts it is not liable to plaintiff on any theory of law.   But if a public dedication by adverse user did not attach, appellant had no interest in the lands in suit (unless acquired from the abutting owners), and the taking thereof, properly within the meaning of our Constitution (Cal.Const. art. I, § 14), includes an act which permanently or temporarily deprives the owner of the property's use.  (Granone v. County of Los Angeles, 231 Cal.App.2d 629, 645, 42 Cal.Rptr. 34.)   Since a right to proceed by way of inverse condemnation will lie under the above provisions of the Constitution, such an action may not be maintained if the property owner had no cause of action against a private citizen on the same facts.  (Bauer v. County of Ventura, 45 Cal.2d 276, 283, 289 P.2d 1.)   The facts are, according to a finding to that effect by the trial court, that prior to the cessation of rail service on May 20, 1955, every entry by appellant upon the easements for their improvements and subsequent utilization as public streets, commencing as far back as 1924, was with the express permission of the railway companies;  such finding makes reference to certain exhibits supporting its further determination that the use and occupancy of the lands were subordinate to and subject to the rights of way for electric railway purposes as set forth in the conveying instruments.   Respondent properly observes that since “Permissive entry is the antithesis of trespass,” a private citizen would not be legally answerable in damages for such activities.   The evidence supports the several findings, and the conclusions drawn therefrom, that there was no implied dedication of the subject parcels and, therefore no defense to the present action on any such basis;  and that plaintiff was not required to assert his claims for damages by way of inverse condemnation until the abandonment of the easement and the entry by appellant upon the property without plaintiff's consent.  (Such entry for a street reconstruction purposes, as will be shown later, first occurred in December of 1956, less than five years before the commencement of the present action.)

 The further contention is made that even if the public street use was beyond the terms of the original grant, the statute of limitations commenced to run at the time of the original entries.   Thus, portions of the rights of way were first improved in 1924, and there were subsequent improvements in 1925, 1927, 1931 and 1948.   The five-year statute (Code Civ.Proc. §§ 318 through 325) applies to actions in inverse condemnation (Frustuck v. City of Fairfax, supra, 212 Cal.App.2d 345, 374, 28 Cal.Rptr. 357) and bars any recovery when five elements have been established in connection with another's occupancy of the property.   Such occupancy or possession concededly must be (1) notorious or under such circumstances as to constitute reasonable notice to the owner;  (2) hostile to the owner's title;  (3) under a claim of right or color of title;  (4) continuous or uninterrupted for five years;  and (5) the possessor must pay all taxes assessed against the property.  (Appellant points out that (5) is not here applicable since no taxes were assessed.)   Furthermore, title may not be acquired by adverse possession unless each one of the above elements is established.  (West v. Evans, 29 Cal.2d 414, 417, 175 P.2d 219.)   The rule last mentioned is of importance here because if the use by appellant was not hostile, respondent's claims are not barred by the governing statutes.   Use of land with permission of the owner is not an adverse or hostile use (Smith v. McDaniel, 228 Cal.App.2d 275, 279, 39 Cal.Rptr. 544);  too, to be adverse such possession must be against one with the right of possession.  (Elbert, Ltd. v. McKenna, 116 Cal.App.2d 480, 254 P.2d 107.)   There was evidence, and the court made findings accordingly, that at various times prior to May of 1955, appellant entered upon portions of the right of way pursuant to agreements with the railroad company as owner of the easement for certain purposes specified in the instrument executed to that end.   Subsequent entries, according to a witness qualified to so testify, were all after November of 1956.   Obviously, until the abandonment of the rights of way the original grantors and their successors had no right of possession.   On either of the above two bases, there was no hostility of use within the specified time necessary to make the statutes of limitation operative.

 Further on the question of title, we come to the point that the abutting owners succeeded to the original grantors' interest in the rights of way under deeds to such owners by the subdividers.   They are said to have a colorable claim at least equal to that of respondent and were, therefore, indispensable parties (Code Civ.Proc., § 389);  the nonjoinder, it assertedly follows, deprived the court of jurisdiction to make a complete determination of the controversy.  (Bank of California Nat. Ass'n v. Superior Court, 16 Cal.2d 516, 522, 106 P.2d 879.)   The same argument (nonjoinder) is made with respect to respondent's immediate predecessors because of claimed infirmities in the quitclaim deeds and agreements between him and such persons.   We cannot accept this latter contention that the subject instruments did not transfer to respondent a right to any just compensation for the taking in suit;  the contention is made by appellant in the role of an intruder.   The correct rule appears to be that the instruments must be construed as if the question were one, between respondent and his predecessors, and between them solely.  (Adamson v. Paonessa, 180 Cal. 157, 164, 179 P. 880.)   The instruments were received upon the granting of respondent's motion to reopen;  parol testimony to interpret the same was received over appellant's objection that the grantors were not before the court.   Without deciding that the above objection was not well taken, we have examined the instruments and they support respondent's position that the rights claimed by him were thereby transferred.   For example, the quitclaim deeds expressly provide in part that there is transferred to respondent “any other rights whatsoever belonging to the grantor with respect to the real property * * *.”   In Roberts Land etc. Co. v. Dallas, 124 Cal.App. 86, 11 P.2d 1103, similar language was held to transfer a chose in action in addition to the conveyance of real property.

 The question of the rights of abutting owners came under discussion in the course of our determination that the easements were not impliedly dedicated to the public.   We now reach the further issue, posed by appellant, that the sale of the subdivided lots by respondent's predecessors conveyed the servient tenement to the streets and therefore to the adjacent rights of way—we have heretofore described this alternative claim as in the nature of an express dedication, namely, the sale of lots with reference to a map showing lands set aside for public use.  (See Berton v. All Person, etc., 176 Cal. 610, 613, 170 P. 151.)   In the present case it is undisputed that each subdivision map contained a blue pencil line separating the rights of way from the rest of the map;  the rights of way, in turn, are bounded by streets which intervene between such property and the lots thereafter sold.   Again we refer to the reproduction in Wagner v. Chambers, supra, 232 Cal.App.2d 14, 17, 42 Cal.Rptr. 334, illustrative of the situation on Vermont.   Notwithstanding appellant's concession that the area subdivided in Wagner is “typical” of that in suit, the argument is made that sections 831 and 1112 of the Civil Code are applicable and defeat respondent's claim that his predecessors retained an interest in the rights of way.   Those sections as indicated by the earlier quotation of section 1112, provide that “unless a different intent appears from the grant” a transfer of land (§ 1112) passes title to the center of the highway in front thereof, while ownership of property (§ 831) bounded by a street is presumed to be to the center of the way “but the contrary may be shown.”   We see no reason to depart from the reasoning adopted in Wagner (hearing by the Supreme Court subsequently denied);  and, of course, we held in Wagner that sections 831 and 1112 had no application to the circumstances there which, appellant seems to concede, are practically identical to those at bar.   Without merit, therefore, is the instant claim that the abutting owners have an interest in these rights of way and are indispensable parties.

 Appellant's next contention relates to the date of valuation fixed by the court.   Parenthetically, appellant (as noted at the outset of this opinion) stipulated to the value of the property (there being no wide difference of opinion with respect thereto) on the date fixed by the court;  it did not, however, waive its right to object on appeal to such date fixed by the curt;  it did not, however, waive its right to object on appeal to such date of valuation which was arrived at in a supplemental pretrial conference order after both sides had filed memoranda in opposition to the court's views.   As to most parcels, the valuation date was fixed as of May 19, 1960, at which time the action was commenced;  as to other parcels, on dates in January and June of 1961 and March of 1962, either when respondent acquired title or appellant physically entered upon the property.   Appellant contends that the selection of May 19, 1960, as the valuation date ignores the well established rule that valuation in inverse condemnation is as of the date of taking.   We agree.  “The yardstick used to ascertain the amount of compensation due in an ‘inverse condemnation’ action is precisely the same as that used in the normal condemnation action.”  (Federal Oil Co. v. City of Culver City, 179 Cal.App.2d 93,97, 3 Cal.Rptr. 519, 522.)   Thereafter quoted is the following from People v. La Macchia, 41 Cal.2d 738, 264 P.2d 15:  “This court ‘has definitely aligned itself with the great majority of the courts in holding that damages must be measured by the market value of the land at the time it was taken, * * * the test is * * * the fair market value of the land in view of all the purposes to which it is naturally adapted.  * * *’ [Citation.]”  (P. 751, 264 P.2d p. 24.)   True, section 1249 of the Code of Civil Procedure provides that “For the purpose of assessing compensation and damages the right thereto shall be deemed to have accrued at the date of the issuance of summons and its actual value at that date shall be the measure of compensation for all property to be actually taken, and the basis of damages to property not actually taken but injuriously affected, * * *”  The above provisions, however, have been held to be procedural, applying only when the condemnor takes the initiative and not, as here, when proceedings are instituted by the landowner.  (City of Los Angeles v. Tower, 90 Cal.App.2d 869, 873, 204 P.2d 395.)   See also County of Los Angeles v. Hoe, 138 Cal.App.2d 74, 80, 291 P.2d 98, which expressly describes the statute as “procedural.”

Furthermore, it appears that the curt made no findings as to when the taking by appellant occurred.   That being so, it may not be validly argued (as respondent endeavors to do) that the date (May 19, 1960) fixed by the court was practical and convenient mid-point by way of compromise.   But a mid-point between what dates or events?   Respondent attempts to justify the court's arbitrary determination upon the ground that the trier of fact would have had to consider valuation testimony commencing with June of 1958 and continuing on varying dates thereafter including March of 1962—the above months representing the first uses of the rights of way (dependent on the parcel or cause of action involved) after the abandonment in May of 1955.   Such procedure may be lengthy and expensive, but it will at least accord with the law governing proceedings of this kind.   Other argument is made on the present point, but we feel the above discussion is dispositive of the instant claim which properly challenges an erroneous ruling requiring a reversal.

 Appellant also complains that it acquired title to the abandoned rights of way by virtue of certain street lighting delinquency deeds, that respondent's interest in the subject parcels was too remote and speculative to warrant any recovery, and that the court erred in allowing him to amend his complaint to conform to proof.   We have considered such claims and find them without merit.

The judgment is reversed insofar as it fixes the valuation of the several parcels taken;  the trial court is directed to retry the issue of such valuation by determining the dates of the several takings, and thereafter award just compensation therefor in accordance with the views hereinabove expressed.   In all other respects the judgment is affirmed.   Neither party will recover costs on appeal.

FOOTNOTES

1.   The public streets involved are Crenshaw (between Slauson and Vernon), Leimert (between Vernon and Fifth Avenue), Santa Barbara (between Fifth Avenue and an easterly extension from Arlington), and Vermont (between Florence and Gage).

2.   As to the parcel embraced by the first cause of action, incorporated by reference as to the parcels in the other six counts of the complaint, the trial court found “That it is not true that the primary object and purpose of the deed, Exhibit A, was to provide for public passenger service over the real property described therein.”

LILLIE, Justice.

WOOD, P.J., and FOURT, J., concur.

Copied to clipboard