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Court of Appeal, Second District, Division 5, California.

The CITY OF LOS ANGELES, Plaintiff and Respondent, v. Robert Lee WOLFE et al., Defendants and Appellants.

Civ. 36110, 37092.

Decided: April 22, 1971

Chester A. Price, Jr., Encino, for defendants and appellants. Roger Arnebergh, City Atty., James A. Doherty, Asst. City Atty., Lambert M. Javelera, Deputy City Atty., for plaintiff and respondent.

This appeal from a judgment in an action to condemn a privately owned parking lot for the purpose of providing publicly owned off-street parking, raises the question of the continued vitality of the rule that the condemnee may not recover severance damages suffered by a non-contiguous parcel. (Oakland v. Pacific Coast Lumber & Mill Co., 171 Cal. 392, 396–400, 153 P.705; People ex rel. Dept. of Public Works v. Dickinson, 230 Cal.App.2d 932, 934, 41 Cal.Rptr. 427.)

The facts are extremely simple. Appellant owns a medical office building on Weyburn Avenue in Westwood Village. Several years before the instant condemnation, he acquired a private parking lot for the use of his tenants, who, together with their employees, have been permitted to park there. He made no separate charge for this amenity. In the superior court he made an adequate prima facie showing that loss of the parking lot would have an adverse effect on the income from the medical building.

The parking lot is located on Broxton Avenue. It is about 250 feet from the office building, if one walks through a public alley and across a parking lot. If one walks only along streets, the distance is about 550 feet. Several privately owned parcels are between the parking lot and the building, as are, of course, the alley and the streets. It is not contended that appellant owns any interest of any kind in the real property between the building and the lot, except, of course, that he and his permittees have the right to use the public streets and alleys, which right they share with everyone else.

On these facts the trial court ruled that appellant was not entitled to severance damages occasioned by the anticipated loss of income from the medical building.1 The rule that severance damages can only be predicated on a showing of unity of title, unity of use and contiguity is well established in California and has been consistently applied. (Oakland v. Pacific Coast Lumber & Mill Co., supra; People ex rel. Dept. of Public Works v. Fair, 229 Cal.App.2d 801, 804–808, 40 Cal.Rptr. 644; People v. Bowers, 226 Cal.App.2d 463, 465, 38 Cal.Rptr. 238.) We see nothing in the pronouncements of the Supreme Court which encourages us to believe that it has. invited a reexamination of the rule at this appellate level. In People v. Ocean Shore Railroad, 32 Cal.2d 406, 423, 196 P.2d 570, 581, there is a dictum to the effect that ‘* * * [t]here may be a right to an award of severance damages in some cases where the property, though not physically contiguous, is being devoted to an existing unity of use.’ This dictum was followed by People, By and Through Dept. of Public Works v. Thompson, 43 Cal.2d 13, 21–26, 271 P.2d 507, 514. There the parcel taken had been separated from the remaining parcel by the Coast Highway. The condemnee had retained title to the underlying fee and, before the condemnation, had had unlimited access to-and-fro across the highway. Such access was to be greatly restricted by the contemplated improvement. The Supreme Court was not awed by the width and physical character of the Coast Highway and treated it the way it would have treated any other easement. ‘If the only easement over defendants' land had been an occasionally used pedestrian trail there would be few if any who would assert that the right of way or easement for the trail constituted such a division of land as to render its several parts noncontiguous. The change in degree of the burden of the easement from a seldom used trail to a paved and heavily traveled state highway is great, even though the highway still admits of completely free access at all points from one area of defendants' land to the other; but the degree of furtherance of separation of the land is much greater when the change is from a mere unfenced roadway to a fenced freeway which completely precludes access from one part of defendants' land to the other except by the use of a service road and of the roadway joinder, than is caused by a change from a trail to an unfenced roadway.’ People, By and Through Dept. of Public Works v. Thompson, supra, 43 Cal.2d at pp. 25–26, 271 P.2d at p. 514.)

By no stretch of the imagination does that case support an extension to the situation at bar. Instead of a continuous fee ownership, albeit burdened by a heavily used easement, we are faced with a gap 250 feet wide in which appellant owns no interest whatever.

The trial court permitted appellant to file a cross-complaint in inverse condemnation in which he claims the same damages to which he would be entitled as severance damages, were such allowable. The trial court ruled properly, we believe, that the cross-complaint did not tender any issues which were not resolved by its ruling that appellant was not entitled to severance damages.2

The ‘cross-complaint’ merely provides appellant with an opportunity to rearrange the argument to the effect that he is entitled to severance damages. Having rejected the point, we cannot, tongue in cheek, grant under one label what we have denied under another.

Appellant filed a separate notice of appeal from the interlocutory ruling that it was not entitled to severance damages. That ruling is not appealable as such and that appeal (2nd Civil No. 36110) must be, and hereby is, dismissed.

The judgment, the appeal from which is second civil number 37092, is affirmed.

I respectfully dissent, firmly in one respect, cautiously but still fairly confidently in another; firmly as to the majority concept that looking toward a ruling favorable to the Wolfe interests somehow involves an uninvited reexamination of a solid Supreme Court position. It is my belief that the Supreme Court did not close the door on exceptions to strict physical contiguity and that succeeding decisions of the Court of Appeal (and one federal court applying California law) recognized this, even though some of them may not have considered their particular facts as meriting the designation of exceptional. It is my feeling that the composite of decisions shows a purposeful opening for the unusual case and an entry into that opening to a degree which, itself, did not purport to be the limit. I believe that a legitimate area of inquiry is therefore open to reviewing courts and that it is proper for them to determine whether a certain set of circumstances would qualify a given case as an exception to the normal rule. I think that if there was any invitation from the Supreme Court it was one to recognize occasional sets of peculiar circumstances which should deserve exception from the basic standard. The caution I mentioned is in respect to how far exceptions to a strict physical contiguity concept should extend.

An examination of several of the decisions in the line of authority will, I trust, show some support for my idea.

The first case, of course, is Oakland v. Pacific Coast Lumber and Mill Co., (1915) 171 Cal. 392, 153 P.705. I do not see this case as a 100 percent solid stand for strict physical contiguity. It is to be noted that there is an alternative ground for the decision. The court's secondary ruling is, in effect, that, even if unity of use and ready access constituted unity of property, only business losses were claimed which did not qualify as severance damages. Thus, the decision is neither a to-the-hilt or a barbed thrust. None of the succeeding cases, by any means, are definitely committed to an absolute rule of complete physical contiguity.

The next in line to which I wish to make reference is Atchison, Topeka and Santa Fe Ry. Co. v. Southern Pacific Co. (1936), 13 Cal.App.2d 505, 57 P.2d 575 (overruled on another point in County of Los Angeles v. Faus, 48 Cal.2d 672, 680, 312 P.2d 680). Two pieces of railroad property were joined by a spur track. The uses of the two parcels were not compatible; one was for a station which the railroad commission was requiring to be abandoned; the other apparently for some disconnected use. The dissimilarity of use was stressed in the opinion; the case could have been disposed of on the basis that absolute contiguity was lacking, the connection by the spur track being insufficient.

The first important succeeding Supreme Court case is People v. Ocean Shore R. R. (1948) 32 Cal.2d 406, 196 P.2d 570. It states that, although ‘contiguity is ordinarily essential, * * * [t]here may be a right to an award of severance damages in some cases where the property, though not physically contiguous, is being devoted to an existing unity of use,'1 (p. 423, 196 P. 2d p. 581—italics supplied), advising, however, that ‘such damages are ordinarily limited to contiguous property. * * *’ (P. 423, 196 P.2d p. 581—italics supplied.) As the majority opinion says, this is dictum, because a negative decision turned on the absence of legal access between the two segments of property.2 The dictum, however, I feel was not idle but purposeful, indicating a philosophy intended for cognizance by the profession. That others saw it this way is indicated by the quotation and restatement in succeeding cases of the clause indicating that such damages are only ordinarily limited to contiguous property and leaving room for the extraordinary case. Such references certainly raise the item above the category of dictum. It is to be noted that the Supreme Court took pains to point out that it was ‘not disputed that defendant would be entitled to severance damages if the roadbed were contiguous, as would be the case if defendant had * * * and existing easement * * * through the park.’ (P. 414, 196 P.2d p. 576.) A vehicular road going through the park did not provide it for railroad purposes. In our case, of course, a route for pedestrian travel is involved and public streets, alleys and parking lots provide that.

Next comes People, By and Through Dept. of Public Works v. Thompson (1954) 43 Cal.2d 13, 271 P.2d 507, also discussed by the majority. Of first importance is the fact that this is one of the decisions which repeats the Ocean Shore phraseology to the effect that contiguity is only ordinarily essential. Further, it is to be noted that the Supreme Court felt that the preexisting main state highway was a substantial barrier despite the property owners' right of access across it. It made the comparison between a hypothetical ‘seldom-used trail’ (to be considered as practically no barrier at all) and ‘a paved and heavily traveled state highway’, and termed it great. Nonetheless, it considered the areas on each side unified even though the unity of use was not strong (farming and marsh land on one side, beach on the other), because there existed the ability to have access across the highway legally at any given point. In proper perspective, I feel, that the owners' holding of the fee under the highway easement was no aid to the unity of use or to the access and did not make for practical contiguity. I think it must be said that even as much unity of use as the Supreme Court found in Thompson was important as seen from the court's reference to cases wherein no unity of property was found, despite absolute contiguity, because of diversity of use. The indication of the ensuing cases is that the stronger the unity of use or purpose and the more imperative the cause therefor, the less is to be the insistence upon strict physical contiguity, providing the connection between the two areas under consideration is the closest feasible and permanent access exists.

Chronologically, a federal decision is next in line: City of Stockton v. Miles & Sons, Inc. (D.C.1958), 165 F.Supp. 554. This case started in the California superior court and was removed on grounds of diversity, the defendant having been a Nevada corporation. Involved was a trucking terminal comprising two city blocks. A fee-owned city street passed through the property. Trucks freely crossed it both ways. The federal court, of course, applied state law. The city contended for the rule of strict physical contiguity. The federal court felt that the unified use in Thompson was weaker than that which it had before it. Clearly it considered that the California decisions up to then authorized its inquiry into whether the particular facts before it permitted it to consider the situation as not ordinary. Of course, the court observed that under federal law there was no problem since unity of use would have been controlling.3

The next intervening California case to which I wish to make reference is People ex rel. Dept. of Public Works v. Chastain (1960) 180 Cal.App.2d 805, 4 Cal.Rptr. 785. There State Highway 99 bisected parts of the defendant's ranch property, and, as in Thompson, condemnation was instituted to make it into a limited access freeway. However, the precondition in Chastain, rather than being one of unlimited crossover access at any point up and down the highway, was one of only four traversing places along several miles of highway. Despite this reduced degree of access, and probably because of a greater degree of unity of use, the court treated the areas on either side of Highway 99 as a single parcel.

Chronologically, the next case to be considered is People v. Bowers (April 1964) 226 Cal.App.2d 463, 38 Cal.Rptr. 238. The parcel involved was one of 98 acres. The preceding owner granted a lumber company a strip running through it from north to south, 50 feet wide by 2250 feet long, reserving no crossover rights. The lumber company fenced both sides. Defendants were deeded the north 22 1/2 acres through which the strip ran. They used it for grazing purposes. There were three acres on the seaward side of the strip and 19 1/2 on the landward. The three acres were being taken for a public park. The Court of Appeal ruled that the defendants had no easement by implied reservation and that it could not adjudicate one by necessity because the lumber company was not a party. It points to the Thompson rationale as resting on the access factor. In Bowers this was lacking. There was just as much nonaccess as if the strip had been 500 feet wide, said the court. If there had been access, it seems that the Court of Appeal in Bowers, supra, would have found the defendants' areas to be a single parcel; their common grazing use would have made that unity strong enough.

Next comes People ex rel. Dept. of Public Works v. Fair, supra (September 1964) 229 Cal.App.2d 801, 40 Cal.Rptr. 644. It is to be noticed with more than just passing interest that in this case the condemning body was urging that strict contiguity was not essential. Such a holding would have allowed it to offset special benefits accruing to a parcel on one side of State Highway 101 (owned in fee by the state and being enlarged) against severance damages suffered by a parcel on the other side, both of which parcels were under common ownership and use (orchard farming). The state urged that together they constituted a single ‘larger parcel’. The trial court treated the parcels as separate. However, it is noteworthy that a public authority itself, when the concept was running in its favor, was willing to embrace the ‘constructive contiguity’ theory. The Court of Appeal gave an explanation of how its viewpoint of People, By and Through Dept. of Public Works v. Thompson, supra, 43 Cal.2d 13, 271 P.2d 507, differed from that of the federal court in City of Stockton v. Miles & Sons, Inc., supra, 105 F.Supp. 554;4 but, as I see it, there really was no fundamental difference. It was simply a matter of a varying analysis as to the degree of access. The rationale of the Thompson case clearly is that the separation of the tracts by the highway did not render them independent parcels where there was an existing unity of use and an actual means of access between them. If there had been no such access, it would seem that the severance damages would not have been allowed. (See Stockton at page 564 thereof.) Note that in People ex rel. Dept. of Public Works v. Fair, supra, the access from one area to the other was limited to one traversing road.5 It is significant that Fair cited People v. Ocean Shore R.R., supra, 32 Cal.2d 406, 196 P.2d 570, as setting up a basis for a qualification or exception to strict contiguity. (P. 805 of 229 Cal.App.2d, 40 Cal.Rptr. 644.) Moreover, the Fair court observes that the Stockton judgment ‘may have been proper under its peculiar circumstances.’ (P. 807, 40 Cal. Rptr. p. 648.)

In rather short order comes People ex rel. Dept. of Public Works v. Dickinson (November, 1964) 230 Cal.App.2d 932, 41 Cal.Rptr. 427.6 The parcels there were owned separately by two individuals who were partners. The use of both areas was by the partnership. They were 500 feet apart and joined only by a private easement. The Court of Appeal observed that the single parcel requirements are stated to be ‘unity of title’ and ‘unity of use’ and citing Ocean Store, supra, ‘ordinarily, contiguity.’ (Italics supplied.) Unity of title was lacking because the partnership lease showed that the partners retained individual ownership. Moreover, the Court of Appeal had to doubt the veritability of contiguity because, by reason of inadequacy of proof, the private easement could have been in gross and terminable. It declined to state what position it would have taken if the proof had been that the easement was appurtenant and presumably, permanent. Of significance, further, is the observation of the court in Dickinson that ‘[t]here is no doubt that by the Thompson case the importance of unity of use was enhanced.’ (P. 935, 41 Cal.Rptr. p. 429.) What would be the point of such language unless it was the consideration of the court that at times the strength of unity of use would overcome the need for strict physical contiguity?

The final case to which I wish to refer is People ex rel. Dept. of Public Works v. Nyrin (November 1967) 256 Cal.App.2d 288, 63 Cal.Rptr. 905. The Court of Appeal again states that ‘ordinarily contiguity’ is necessary for severance damages. (P. 292, 63 Cal.Rptr. 905.) It is significant that the court observes that what constitutes a single parcel may involve issues of fact. This could pertain to the matter of the strength of use making the extent of contiguity a lesser requirement. It is worth noting also that this case involves the parking lot factor, and the treatment of the court indicates that unified use based on zoned parking requirements is very important and could be a decisive feature. Moreover, the arbitrariness of a requirement of strict physical contiguity in the situation wherein the strength of unity of use is in parking facilities, particularly when required by municipal ordinance, is made clear in Nyrin. Severance damages to the hospital property were principally based on the loss of parking spaces.

Turning to the case at hand, I call attention to the fact that there was no trial in a real sense. The court held only what was designated as an interim trial, conducted, apparently, in the judge's chambers. The actual evidence introduced was very sparse and left many important factors undeveloped. The trial court's ruling for strict physical contiguity unquestionably accounted for the Wolfe interests not presenting any further evidence of the nature discussed hereinafter.

One way or another, there is available for us to think about this much factual material: When the Wolfe interests built the medical building in 1951, it had on-site parking facilities adequate to meet existing statutory requirements. The circumstance is assumed by both parties that between 1951 and 1959 the city increased the parking space requirements for buildings such as that of the Wolfe interests.7

In 1959 the Wolfe interests acquired the parcel sought to be condemned for the sole purpose of providing additional parking spaces for the medical building. One of the Wolfes, without contradiction, testified that this acquisition brought the building within the parking requirements of the then existing zoning ordinance; that, as a matter of practical fact, without parcel 3, there would be insufficient parking for the building's tenants; that since the tenants require all day parking, the hourly parking lot nearby would not satisfy their needs; and that providing adequate off-street parking is a most important factor in renting office space in the area and the lack of such facilities would materially affect the value of the building.

The congested nature of Westwood can be inferred from Wolfe's testimony and from the fact that the ‘public necessity’ for which parcel 3 was condemned was for use as public off-street parking. In a congested commercial neighborhood the successful operation of a medical building could well depend on the availability of accessible parking to tenants. Although the medical building site and the parking lot do not touch, they are certainly physically proximate. Indications are that it can be shown that the Wolfe interests purchased the lot most closely available at a feasible price. The parcels are approximately 250 feet apart; the two routes of travel, as indicated, are on property accessible to the public, feasible and presumably permanent.

Once the lot was actually acquired and put to use, the City might well have been in a position to prevent the Wolfe interests from ceasing to use the lot as parking for the medical building. This conclusion is reachable by analogy with decisions holding that if a nonconforming use is relinquished, the building must thereafter conform (see Burke v. Los Angeles, 68 Cal.App.2d 189, 156 P.2d 28; 8a McQuillin, Municipal Corporations (3d ed.) §§ 25.189–25.199, pp. 36–52). A nonconforming use pertains until it is discontinued. Termination of a nonconforming use is controlled by the circumstances and intent of the owner. The policy of the law is for elimination of nonconforming uses. (McQuillin, ibid, § 25.189, pp. 36–37.) Generally there can be no resumption of a nonconforming use which has been relinquished. (McQuillin, iibid, § 25.198. p. 50.) A conforming use cannot be changed to a nonconforming use. (McQuillin, ibid, § 25.202, p. 62.) The same result would seem to follow from application of Los Angeles Municipal Code section 12.21 A4(m) which was in effect when the Wolfe interests acquired and commenced the use of the lot for additional parking. It provides that parking space being maintained in connection with an existing building shall be maintained as ling as the building remains. Therefore, at the time of the taking, the unity of use of the building and lot was, in a sense, required by law.8

Also, the City, in requiring that parking be provided for such buildings, demands that it be provided within 750 feet of the property measured along streets, walks, alleys or private easements. (Municipal Code of the City of Los Angeles, Zoning, § 12.21 A 4(g).) Thus, the City itself takes cognizance that the principle of unity of use and proximity is a practical substitute for physical contact. This is a recognition that it may be impossible to obtain physically adjacent parking facilities and that actual physical adjacency is not necessary or significant. The fact that the parking lot satisfies the City's requirements for proximity should be given considerable weight in the evaluation of the factors to be considered in making the determination if this is an exceptional case wherein unity of property exists by reason of strong unity of use and ‘constructive contiguity,’ entitling the Wolfe interests to such severance damages as they can prove.

I think that a full trial should be held. Therefore, I would reverse the judgment and remand the case to the trial court for further proceedings, and, of course, I would like to see the Supreme Court take a look at this case.


1.  The court did rule that the defendants were not precluded from presenting evidence that the adaptability of the parking lot ‘for its highest and best use to determine its value requires consideration of the joining of said Parcel with defendant's other land [the building] for purpose of a common use.’ This ruling is obviously not the equivalent of the allowance of severance damages. (Yolo Water and Power Co. v. Hudson, 182 Cal. 48, 54, 186 P. 772; People v. Loop. 127 Cal.App.2d 786, 797, 274 P.2d 885.)

2.  No judgment on the cross-complaint was ever entered. We interpret the trial court's ruling to mean that the cross-complaint, though filed, became merged in the issues already before the court and was, therefore, nothing but appellant's answer under a different label. We agree.

1.  ‘Unity of use’ had been defined as ‘a connection or relation of adaptation, convenience, and actual and permanent use [such] as to make the enjoyment of the parcel taken reasonably and substantially necessary to the enjoyment of parcels left, in the most advantageous and profitable manner in the business for which they are used.’ (City of Stockton v. Marengo, 137 Cal.App. 760, 766, 31 P.2d 467, 470.)

2.  The property involved was two parts of a once united railroad bed which were separated by a park, the track route across which either had never been effectively gained as an easement or had been abandoned.

3.  Federal law and that of some jurisdictions is that while contiguity is a factor to be considered, it is not determinative and that unity of title and unity of use may make physically distinct pieces of land, as combined, a single ‘larger’ parcel, so that any part of each would be considered part of that larger parcel. (See People ex rel. Dept. of Public Works v. Fair, 229 Cal.App.2d 801, 804, 40 Cal. Rptr. 644; Baetjer v. United States, 1 Cir., 143 F.2d 391; Essex Storage Elec. Co. v. Victory Lumber Co., 93 Vt. 437, 108 A. 426; Valley Paper Co. v. Holyoke Housing Authority, 346 Mass. 561, 194 N.E.2d 700; Quiney v. V. E. Best Plumbing & Heating Supply Co., 17 Ill.2d 570, 162 N.E.2d 373.) The rationale is stated in Baetjer v. United States, supra, at page 395: ‘Integrated use not physical contiguity therefore is the test. Physical contiguity is important, however, in that it frequently has great bearing on the question of use. Tracts physically separated from one another frequently, but we cannot say always, are not and cannot be operated as a unit, and the greater the distance between them then the less is the possibility of unitary operations. But separations remain an evidentiary not an operative fact, that is [,] a subsidiary fact bearing upon [,] but not necessarily determinative of the ultimate issue upon the answer to which the question at issue hinges.’

4.  Stockton specifies the owner's actual lawfully used means of access. Fair stresses the ‘legal right to unlimited access back and forth across the roadway from any point’ on the properties abutting on either side of it.

5.  Apparently a user went off of one area on to the public-crossing-thoroughfare (Tully Street) at some distance back from the highway, used Tully Street to cross Highway 101, and then left Tully Street to get to the other area at a point somewhat distant from Highway 101.

6.  Dickinson points out that the ruling in the Santa Fe case (Atchison, Topeka and Santa Fe Ry. Co. v. Southern Pacific Co., 13 Cal.App.2d 505, 57 P.2d 575) is somewhat weakened by the fact that the railroad station was to be abandoned, not-because of the condemnation proceeding but by order of the railroad commission.

7.  Apparently, the ordinance in question was No. 111.049 (1958) amending Municipal Code of the City of Los Angeles. Zoning, section 12.21A4(e). Judicial notice of these can be taken pursuant to Evidence Code, sections 452(b), 455(a) and 459(a), (c). (See also Jordan v. County of Los Angeles, 267 Cal.App.2d 794, 798, 73 Cal.Rptr. 516.)

8.  Since the devotion of the parking lot (parcel 3) to general public parking is the act of the City and not that of the Wolfe interests, although the City may well be estopped from requiring the Wolfe interests to obtain replacement parking (see Fontana v. Atkinson, 21 Cal.App.2d 499, 507, 28 Cal.Rptr. 25), they should not be debarred from pointing in this case to what, at the time of suit, was tantamount to enforced unitization of the two properties. If the Wolfe position were declared to be correct, but the condemnation action for some reason was not carried through, the Wolfe interests certainly would be held to have devoted the parking lot to compliance with the ordinance and could not claim the right to revert to a nonconformance status for their medical building.

KAUS, Presiding Justice.

STEPHENS, J., concurs.