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Court of Appeal, Second District, Division 3, California.

SOUTHERN CALIFORNIA EDISON COMPANY, a corporation, Plaintiff and Respondent, v. Richard D. BOURGERIE et al., Defendants and Appellants.

Civ. 38973.

Decided: August 23, 1972

Jack Otero, Santa Barbara, Roger M. Sullivan, Los Angeles, Gideon Kanner, Beverly Hills, for appellants. Rollin E. Woodbury, Harry W. Sturges, Jr., Tom P. Gilfoy, Los Angeles, for respondent.

Defendants Glenn and Bourgerie appeal on the judgment roll from a judgment in condemnation whereby plaintiff Southern California Edison Company, a corporation, acquired title to certain real property owned by defendant Bank of America National Trust and Savings Association for the purpose of constructing thereon a facility to be known as the Ortega Electric Substation. The bank was awarded $178,938 for the taking. Defendants Glenn and Bourgerie were awarded nothing.

It appears that in 1964 Glenn and Bourgerie had purchased a tract of land from the bank. The deed provided in part: ‘That said land shall not be used for any of the following purposes, to wit: . . . electric transmission station. . . . The Grantor hereby imposes the above conditions on its remaining property adjoining on the west property herein conveyed . . . and agrees that any future deed of its adjoining property shall contain the same conditions above set forth.’ The property involved in this action is a portion of the tract still owned by the bank and adjoining the Glenn and Bourgerie property on the west. The deed restrictions were applicable to this parcel. The construction of the facility would be in violation of the restrictions.

The sole question presented on appeal is the propriety of the judgment insofar as it deprives Glenn and Bourgerie of the benefit of these deed restriction rights without compensation. It is argued that the trial court disregarded decisional law holding that noncompensability of deed restrictions is a rule applicable only to condemnation by a sovereign and not to a taking by a private corporation in furtherance of its economic interests and that a private corporation must compensate for the taking of such rights under the provisions of Article I, section 14 of the California Constitution. Defendant's arguments are not persuasive of reversal. The governing law is set forth in Lombardy v. Peter Kiewit Sons' Co., 266 Cal.App.2d 599, 604–605, 72 Cal.Rptr. 240, cert. denied 394 U.S. 813, 89 S.Ct. 1486, 22 L.Ed.2d 748, and Friesen v. City of Glendale, 209 Cal. 524, 530–531, 288 P. 1080, holding that deed restrictions even though created by private contracts are unenforceable against public use and are noncompensable nonproperty rights when taken in eminent domain actions. (See also People ex rel. Dept. Pub. Wks. v. Volunteers of America, 21 Cal.App.2d 111, 126, 98 Cal.Rptr. 423.) While it is true that Lombardy involved condemnation by the Department of Public Works and Freisen by the City of Glendale, we fail to see the logic in defendants' argument that in the case of a private corporation deed restriction rights must assume a different character than in the case of condemnation by such public entities. A private corporation has the power to condemn for public uses. (Western U. Tel. Co. v. Superior Court, 15 Cal.App. 679, 694–695, 115 P. 1091.) In so doing it is acting as an agent of the state. Civil Code section 1001 provides:

‘Any person may, without further legislative action, acquire private property for any use specified in Section 1238 of the Code of Civil Procedure either by consent of the owner or by proceedings had under the provisions of Title 7, Part 3, of the Code of Civil Procedure;1

and any person seeking to acquire property for any of the uses mentioned in such Title is ‘an agent of the State,’ or a ‘person in charge of such use,’ within the meaning of those terms as used in such Title. This section shall be in force from and after the fourth day of April, eighteen hundred and seventy-two. (Enacted 1872.)'

Code of Civil Procedure section 1238 subdivision 13 contemplates condemnation for electric facilities as being for the public use.

With respect to the constitutional argument, if deed restrictions are not compensable property rights, the constitutional mandate of just compensation is not violated by the taking without compensation. We deem the principles of Friesen and Lombardy controlling of the issue presented herein and that their application to a taking by a private corporation of deed restriction rights for the development of electrical power facilities is not an unwarranted expansion of the decisional law nor a violation of Article I section 14 of the California Constitution.

The judgment is affirmed. Appellants to recover costs on appeal. (See People ex rel. Department of Public Works v. International Tel. & Tel. Corp., 26 Cal.App.3d 549, 103 Cal.Rptr. 63.)


1.  Code of Civil Procedure § 1237 et seq.

ALLPORT, Associate Justice.

SCHWEITZER, Acting P. J., and COBEY, J., concur.

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