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Court of Appeal, Fifth District, California.

The PEOPLE ex rel. DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. William RAMOS and Janis Ramos, Defendants and Appellants.

Civ. 1035.

Decided: April 18, 1969

Colley & McGhee and Milton L. McGhee, Sacramento, for defendants-appellants. Harry S. Fenton, John B. Matheny, Marc Sandstrom and Stephen A. Mason, Sacramento, for plaintiff-respondent.


Defendants appeal from a judgment entered in a condemnation proceeding in which the value of the property taken was fixed by stipulation at $3,500.   The principal controversy on appeal centers on the finding and order that defendants suffered no severance damages by reason of loss of access.

The case was tried in two stages, by different judges.   The question whether defendants' loss of access was an item of compensable damage was tried first.   The judge ruled there would be no substantial impairment of access by reason of construction of the improvements in the manner proposed, which limited defendants' valuation evidence on the issue of severance damages at the second phase of the trial.

Before the taking, defendants' property consisted of two contiguous lots located in West Sacramento, in an area zoned C–2, community commercial.   The trial court found the two lots, one vacant and the other improved with an apartment building, comprised a single parcel, and that finding is not under attack;  the appeal is directed largely at the ruling that there was no compensable deprivation of access.   The following diagrams of the property in “before” and “after” condition will help clarify the statement of facts.

Neither the lots nor the county roads in the area are located true north and south, so that before the taking Soule Street ran along the front of the property in a northeasterly direction.   At the corner of the lot it made a 90–degree turn and, with the name changed to Clay, the street continued along the northwesterly side of the lot.   Access to connecting streets was available from either Soule or Clay Streets.

The State constructed a freeway running east and west, taking two small parcels off the north corner of the property.   The triangular parcel, 3–A, at the northerly tip, consisting of 1,159 square feet, was taken in fee for the freeway right of way.   Parcel 3–B, a 20–foot strip contiguous to Parcel 3–A, consisting of 2,565 square feet, was taken for underground utility easement purposes.

After the taking, Parcel 3–A became part of the freeway bordered by a chain link fence six feet high, marking the outer limits of the freeway right of way.   The fence continued beyond the property taken from defendants, and completely eliminated the county road that formerly circled the north corner of defendants' property.   That road now terminates in a cul-de-sac at the front of defendants' property, so the only access or frontage in the after-taking condition is via the one street which enters the cul-de-sac.

The judge who tried the access issue determined as a matter of law that defendants' loss of access is not compensable for the reason that Parcel 3–A was not taken for the construction of the freeway itself.

The principal case upon which respondent relies is People ex rel. Dept. Public Works v. Elsmore, 229 Cal.App.2d 809, 40 Cal.Rptr. 613, which articulates the rule in People ex rel. Dept. of Public Works v. Symons, 54 Cal.2d 855, 9 Cal.Rptr. 363, 357 P.2d 451.   To properly analyze the import of Elsmore, it is necessary to first examine the prototype, Symons, the thrust of which appears at page 860, at page 367 of 9 Cal.Rptr., at page 454 of 357 P.2d:

“It is established that when a public improvement is made on property adjoining that of one who claims to be damaged by such general factors as change of neighborhood, noise, dust, change of view, diminished access and other factors similar to the damages claimed in the instant case, there can be no recovery where there has been no actual taking or severance of the claimant's property.  [Citations.]  Accordingly, in the case at bar, had the parcel for the cul-de-sac not been taken, the defendant would not be entitled to recovery based on the general diminished property values due to the construction of the freeway on adjoining property.   It is manifest, then, that the crucial question here is whether the defendants, whose property was taken for purposes other than the construction of the freeway itself, are entitled to compensation, as severance damages, for those impediments to the property resulting from the objectional features caused by the maintenance and operation of the freeway proper on lands other than those taken from the defendants.”

Although the improvement in Symons was necessitated by the freeway construction, no part of the property taken was used for the freeway as such;  it was used to enlarge a cul-de-sac on a road adjacent to the freeway.

A later case, People ex rel. Dept. of Public Works v. Wasserman, 240 Cal.App.2d 716, 50 Cal.Rptr. 95, applied the rule of Symons but there, again, the parcel condemned was not taken for the freeway proper, “merely to round out the curve abutting defendants' property at the intersection of Roberts Avenue and Holbrook Street.”  (P. 726, 50 Cal.Rptr. p. 101.)

In the case at bench, Parcel 3–A was taken for use as part of the freeway right of way, and the chain link fence was constructed on it.   Therefore the rule of Symons would not seem to be applicable, but this assumption runs counter to the holding in the case of People ex rel. Dept. of Public Works v. Elsmore, supra.   The facts of Elsmore, as stated at page 810 of 229 Cal.App.2d, at page 614 of 40 Cal.Rptr., are:

“The only improvement to be constructed on the land taken from appellants is a chain link fence to be placed on or near the property line separating the state-acquired property from the remainder of Parcel 2.   The part of Parcel 2 acquired by the state was taken for freeway purposes but not for the construction of the freeway proper.   It is to be a portion of an unimproved and cleared strip about 25–30 feet wide located to the side of the freeway roadbed.   This cleared strip, designed to run along the entire length of the freeway from San Jose to San Francisco, is to be used only for emergency and maintenance vehicles and operations.   All of the land taken from appellants is included within this proposed roadside strip.”

Thus, against a factual background very similar to the case at bench, Elsmore held that the rule of Symons is applicable to a taking for right of way purposes so long as no part of the freeway proper is to be constructed upon the property taken.

Defendants point out that their Parcel 3–A was taken for inclusion within the right of way, which distinguishes the case from Symons and Wasserman where the taking was for use outside the freeway boundaries.   However valid the distinction may appear on its face it was rejected in Elsmore, the court saying, at page 812 of 229 Cal.App.2d, at page 615 of 40 Cal.Rptr.:

“Appellants argue that the Symons case is not applicable because the condemned land did not lie within the freeway right-of-way as in the instant case.   They contend that here we have a unity of use which cannot be separated by an imaginary line drawn between appellants' property used for the maintenance strip and the property of others used for the freeway.   This contention would be sound if some of appellants' land had also been taken and was being used for the freeway proper.   The crucial test is whether there is any construction or use on the part taken which may cause a diminution in value to the remainder.”  (Emphasis added.)

The foregoing language of Elsmore, “construction or use on the part taken,” casts a doubt upon the court's ultimate conclusion since freeway widening for emergency parking (and obviously room for future widening of the pavement and shoulder) is certainly a highway use.   Moreover, access was cut off by a fence erected upon the condemned Elsmore property, and building a fence would seem to lend itself to the common meaning of the word “construction.”

The judge who tried the damage issues expressed dissatisfaction with the rule in Elsmore.   We are sympathetic to his view, as it appears to us that Elsmore makes a technical and unrealistic extension of the holding in Symons.   The upshot is that an owner whose property is taken up to but not under an area of actual construction is deemed to have suffered no compensable loss of access, even though he has been just as effectively deprived of access by the use of land for freeway right of way as the man whose property extends one foot under the roadbed or six inches under an on-ramp.   Realistically, the “right of way” is an integral part of freeway construction, and a chain link fence at the outer limits of the easement is a part of highway construction.   The critical point, however, is that the taking for such purposes deprives the remainder of the property of access.

Nevertheless, we are bound by Elsmore since a petition for a hearing in the Supreme Court was denied.  (Cole v. Rush, 45Cal.2d 345, 351, 289 P.2d 450, 54 A.L.R.2d 1137.)   It is said that by denying a hearing the Supreme Court does not necessarily place its imprimatur upon everything said in the court of appeal opinion.   However, as the only question determined by the court of appeal was the applicability of the rule of Symons to the facts of Elsmore, the question before the Supreme Court on petition for hearing was within that narrow compass and, by denying a hearing, the Supreme Court gave no less than tacit approval to the Elsmore extension of Symons.

The judgment and orders are affirmed.

STONE, Associate Justice.

CONLEY, P.M., and GARGANO, J., concur.