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Court of Appeal, Fifth District, California.

The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Petitioner, v. The SUPERIOR COURT OF MERCED COUNTY, Respondent; Roy L. RODONI and Thelma I. Rodoni, Real Parties in Interest.

Civ. 723.

Decided: January 23, 1967

Harry S. Fenton, Chief Counsel, Sacramento, Holloway Jones, Deputy Chief Counsel, Jack M. Howard, William C. DeMartini and William R. Edgar, San Francisco, for petition. No appearance for respondent. Linneman, Burgess, Telles & Van Atta, and L.M. Linneman, Dos Palos, for real parties in interest. Faden & Kanner and Gideon Kanner, Los Angeles, as amici curiae on behalf of Real Parties in Interest.


Real parties in interest own two parcels of farm land which before the taking were cater-cornered, the northeast corner of the lower rectangular parcel touching the bottom tip or corner of the upper triangular parcel.   Access to the upper parcel was from a county road along the easterly side of the lower parcel.   The freeway cut through the adjoining corners, taking the tip of each parcel together with the part of the county road that provided access, thus landlocking the upper parcel.   The tip taken from the lower parcel, designated “Parcel 7,” contains 0.57 acre, the tip taken from the upper parcel contains 0.08 acre and is designated “Parcel 8.”   Parcel 9, containing 54.03 acres, is hemmed in by privately-owned property on two sides of the triangle and a large irrigation canal along the third side.

Under the authority of Streets and Highways, Code section 104.1, petitioner sought to condemn the 54.03 acres in landlocked parcel 9, not for use in the highway project but for resale to third parties in recoupment.   Admittedly, the purpose in condemning the 54.03 acres is to avoid payment of severance damages, which it is alleged equal the value of the entire parcel.   Thus, if the state is not permitted to condemn parcel 9, it will be required to pay severance damages equal to the value of the parcel without any possibility of an offsetting recoupment;  the owners will retain title to the property and recover severance damages equal to the market value of the property.

Rodonis answered the complaint in condemnation, alleging by way of affirmative defense that a taking simply to avoid severance damages violates article I, section 14, of the California Constitution, which limits the power of a public entity to condemn private property under eminent domain to a taking for public use.   The gist of this defense is that taking excess property to avoid severance damages is not a taking for “public use.”

This issue was set for trial separately, before the trial of the condemnation action in chief.   The trial court decided the issue in favor of the Rodonis, holding that the proposed condemnation of parcel 9 “is not a taking for a public use, and is, therefore, unauthorized by law.”   The court further ordered that petitioner's complaint be “dismissed insofar as it affects or purports to condemn the aforesaid real property” and “further, that said action shall proceed duly to trial insofar as the same affects and seeks to condemn the parcels of land * * * 7 and 8, for the purpose of determining the amount of damages, including severance damages, to be recovered by said defendants by reason of the severance of said parcel 9 from the remainder of their lands.”   The trial court gave defendants 30 days in which to file an amendment to their answer “setting forth the severance damages to be sustained by reason of the severance of said parcel 9 from said remainder.”

The department petitioned this court for a writ either in mandate ordering the Merced County Superior Court to proceed with the trial of the original complaint for condemnation of parcels 7, 8 and 9, or for a writ of prohibition forbidding the Merced County Superior Court to proceed in the action in accordance with the minute order summarized above.

 Petitioner prefaces its argument with the observation that eminent domain is an inherent power of the state, that the constitutional provision restricting its exercise to a “public use” is not a grant of power to the state but a limitation upon the state's inherent power, and as such it must be strictly construed.   In short, the term “public use” must be given a broad and liberal interpretation when viewed as delimiting the sovereign power of eminent domain.   Recent California cases have adopted this view.  (Housing Authority of Los Angeles County v. Dockweiler, 14 Cal.2d 437, 94 P.2d 794;  In re Redevelopment Plan for Bunker Hill, etc., 61 Cal.2d 21, 71, 37 Cal.Rptr. 74, 389 P.2d 538;  Redevelopment Agency, etc. v. Hayes, 122 Cal.App.2d 777, 802, 266 P.2d 105;  County of Los Angeles v. Anthony, 224 Cal.App.2d 103, 36 Cal.Rptr. 308.

Taking this liberal approach, petitioner asserts that parcel 9 must be viewed not as a separate parcel but as one of the three parcels affected by the overall project.   Then it can be seen that the state, by taking parcels 7 and 8, has destroyed the utility of parcel 9, which is tantamount to taking the parcel.   This is borne out by the resulting severance damages which equal the value of the property.   Therefore, argues petitioner, the state should be permitted to condemn parcel 9 as part of the overall taking for highway purposes, even though for the avowed purpose of selling it to a neighboring landowner by way of recoupment.

 However, we do not reach the problem of construing the constitutional language “public use” because we deem section 104.1 of the Streets and Highways Code to be unconstitutional for lack of standards insofar as its application to eminent domain is concerned.   That is to say, the criteria governing the authority of the department to take the property of a landowner against his wishes, by eminent domain, are so vague and uncertain that the landowner is denied the protection he is guaranteed by the due process clauses of both state and federal constitutions.  Section 104.1 provides that

“Wherever a part of a parcel of land is to be taken for state highway purposes and the remainder is to be left in such shape or condition as to be of little value to its owner, or to give rise to claims or litigation concerning severance or other damage, the department may acquire the whole parcel and may sell the remainder or may exchange the same for other property needed for state highway purposes.”

It is apparent that section 104.1 embodies a number of criteria enabling the Department of Public Works to condemn excess property damaged by, but unneeded for, a highway project.   Before dissecting section 104.1, we point out that the criteria are separated by the disjunctive connective “or,” so that each is not only co-equal and independent but each is an alternative criterion.

The first criterion:  whenever the remainder of a parcel “is to be left in such shape or condition is to be of little value to its owner,” leaves entirely to the department the determination whether the parcel is of little value to its owner.

Under the eminent domain part of the Code of Civil Procedure, section 1266, delineating the power of a county or city to condemn under similar circumstances, the condemnor is limited in the right to take excess property to situations which would “require such condemnor to pay in compensation for the taking of such part an amount equal to the fair and reasonable value of the whole parcel, * * * ”  Section 104.1 of the Streets and Highways Code, absent the damage-value test, permits the department to condemn excess property regardless of the size or shape of the remainder or the degree of damage.

Another criterion:  “give rise to claims or litigation,” is likewise impermissibly vague and uncertain.   Rare, indeed, would be the taking of part of a parcel that did not give rise to claims or litigation involving severance or other damages.   Without the damage-value limitation that severance damages or compensation equal the fair and reasonable value of the whole parcel, the taking of excess property under section 104.1 for resale to third persons is a matter largely, if not entirely, within the discretion of the Department of Public Works.   A landowner wishing to contest the right of the state to take his excess land can find no standard within section 104.1 by which to test the exercise of discretion by the department.

We note that in a number of cases from other jurisdictions, cited by petition, in which the condemnation of excess property is upheld, the decisions are based upon either a constitutional provision or a statute containing language similar to that quoted above from section 1266 of the Code of Civil Procedure, limiting the power of the condemning authority to situations where the condemnor would be required to pay in compensation, including severance damages, an amount equal to the fair and reasonable value of the whole parcel.

 Petitioner argues that the instant case meets this requirement, since severance damages resulting from the landlocking of parcel 9 will equal the value of the 54.03 acres.   This is a mere happenstance that cannot be used as the basis for determining the constitutionality of section 104.1.   The test of the validity of a statute is not what has been done under it, but what may be done under it.  (Matter of Lambert, 134 Cal.626, 634, 66 P. 851, 55 L.R.A. 856;  People v. Lawrence, 140 Cal.App.2d 133, 137, 295 P.2d 4;  14 A.L.R. 1341.)   The vice of section 104.1 is demonstrated not by its application to the facts of this case but by the language that permits the department, in its discretion, to take excess property for resale when it determines the property is left in such shape or condition as to be of little value to its owner, even though “severance damage” or “other damage” may equal only 50 per cent, 25 per cent, or 10 per cent, of the value of the remainder.

 Indefiniteness in statutory terminology may constitute an invalid delegation of power, as well as a denial of due process.  (Wotton v. Bush, 41 Cal.2d 460, 468, 261 P.2d 256;  United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516;  11 Cal.Jur.2d Constitutional Law, § 122, p. 484.)  Section 104.1 authorizes the department to decide under what circumstances private property may be taken from the owner for resale to a third person for private use.   In our view, investing the Department of Public Works with the sole power to determine when the “shape or condition of the remainder of a parcel taken is of little value to its owner or would give rise to claims or litigation concerning severance or other damage” constitutes an invalid delegation of legislative power.

 Petitioner argues that the courts should supply certainty to section 104.1 by judicially established norms governing the circumstances under which the authority delegated to the department may be exercised.   It seems to us highly undesirable that courts should supply legislative standards by a sort of judicial trial and error process of inclusion and exclusion, case by case.   In a somewhat different posture, the California Supreme Court inferentially rejected the idea that courts can save a vague and indefinite statute by implanting judicially contrived norms.   In the case of In re Newbern, 53 Cal.2d 786, at page 797, 3 Cal.Rptr. 364, at page 371, 350 P.2d 116, at page 123 the court held unconstitutional “a criminal law so lacking in definition that each defendant is left to the vagaries of individual judges and juries.”

Although Newbern involved the construction of a criminal statute, the underlying principle is applicable to a statute that purports to enable the state to deprive a citizen of his property through the exercise of the power of eminent domain.   Indeed, it is said, in Perez v. Sharp, 32 Cal.2d 711, at page 728, 198 P.2d 17, at page 27:

“The requirement that a law be definite and its meaning ascertainable by those whose rights and duties are governed thereby applies not only to penal statutes, but to laws governing fundamental rights and liberties.”

Furthermore, we have serious misgivings about a court assuming the prerogative of devising and supplying omitted statutory standards.   This would appear to be a usurpation by the courts of a legislative function, in violation of article III of the Constitution.   A comparable delegation of legislative power to an administrative officer was held unconstitutional in People's Federal Savings & Loan Assn. v. State Franchise Tax Board, 110 Cal.App.2d 696, at page 700, 243 P.2d 902.

 On the other hand, our conclusion that section 104.1 is unconstitutional insofar as it pertains to the condemnation of excess property because it is vague and uncertain, does not require us to find, and we do not find, the statute is unconstitutional and invalid for all purposes.   Insofar as it authorizes the Department of Public Works to purchase excess property from a willing owner under the circumstances set forth therein, the section is valid.   At first impression the section appears to have been designed for this very purpose—to enable the department to purchase damaged excess property for resale to private persons for private use.   The language used in section 104.1, “may acquire,” rather than the language “condemned,” “condemning authority” or “condemnor,” found in section 1266 of the Code of Civil Procedure, appears to bolster this conclusion.   However, this deduction is untenable in the face of the provisions in section 26 of the Streets and Highways Code, “unless the context or a specific provision otherwise requires, ‘acquire,” or any of its variants, when used with reference to real property or any interest therein, includes but is not restricted to:  (a) Taking by condemnation, purchase or lease.”

The unconstitutionality we find in section 104.1 is somewhat unusual in that it does not present a question of the separation and expurgation of paragraphs or sentences or even of a word;  we are confronted with the scope or function of the single word “acquire.”   We do not hold that the word must be excised, simply that it cannot be interpreted constitutionally to mean “condemn.”   Functionally, the word “acquire” as used in section 104.1 cannot be interpreted to invest the department with authority to take a landowner's property by condemnation under the circumstances delineated by the statute.

 We adopt this interpretation of partial functional invalidity, a semantic limitation, in accordance with the well established law that a provision in a statute or a part of a statute may be declared unconstitutional without invalidating the entire act.  (Estate of Childs, 18 Cal.2d 237, 245, 115 P.2d 432;  Palaske v. City of Long Beach, 93 Cal.App.2d 120, 133–134, 208 P.2d 764;  People's Federal Savings & Loan Assn. v. State Franchise Tax Board, supra, 110 Cal.App.2d at p. 701, 243 P.2d 902, 11 Cal.Jur.2d, Constitutional Law, § 87, p. 424.)

 We are also mindful that to hold a statute partially invalid is proper only in the event it is determined that the Legislature intended the statute to be effective notwithstanding partial invalidity.  (Bacon Service Corp. v. Huss, 199 Cal. 21, 32, 248 P.2d 235;  3 Witkin, Summary of Cal.Law (1960) Constitutional Law, Partial Unconstitutionality and Severability, p. 1821.)   We find nothing to indicate that it was not the intention of the Legislature to enable the department to purchase excess property unnecessary for a highway project but damaged by the taking, quite aside from the power to condemn such excess property by eminent domain.

The petition for a writ of mandate or a writ of prohibition is denied, real parties in interest to recover costs.

STONE, Justice.

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

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