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Court of Appeal, First District, Division 4, California.

The CITY OF OAKLAND, etc., Plaintiff and Appellant, v. The OAKLAND RAIDERS, LTD., etc., et al., Defendants and Respondents.

Civ. 51180.

Decided: September 02, 1981

Jeffrey N. Haney, Acting City Atty., Theodore R. Lakey, Asst. City Atty., Oakland, John D. Rogers, Rogers, Vizzard & Tallett, San Francisco, Michael W. Stamp, Berkeley, Laurence P. Horan, Horan, Lloyd & Karachale, Inc., Monterey, David A. Self, Oakland, for plaintiff and appellant. Moses Lasky, R. Stewart Baird, Lasky, Haas, Cohler & Munter, San Francisco, Hardin, Cook, Loper, Engel & Bergez, Oakland, William Mathews Brooks, San Leandro, for defendants and respondents.

The City of Oakland appeals from a summary judgment dismissing a complaint by which it sought to acquire by eminent domain the Oakland Raiders football team. We affirm the judgment.

The football team is a business belonging to a partnership managed by respondent Allen Davis. In 1966, the Raiders partnership and the Oakland-Alameda County Coliseum, Inc., a California nonprofit corporation, entered into a license agreement for a five-year term with five three-year renewal options in favor of the Raiders. The Raiders exercised their option in 1970, 1973 and 1976, but failed to exercise their option for the season commencing in 1980. Contract negotiations between the city and the Raiders terminated without agreement. The Raiders indicated an intention to move to Los Angeles. The city then commenced this action in eminent domain for the purpose of preventing the partnership from moving its activities away from Oakland.

The power of eminent domain permits a local government to take property for public use upon payment of just compensation. (U.S.Const., 5th and 14th Amends.; Cal.Const., art. I, s 19;1 Code Civ.Proc., s 1240.010;2 County of San Diego v. Miller (1975) 13 Cal.3d 684, 687, 119 Cal.Rptr. 491, 532 P.2d 139; People v. Chevalier (1959) 52 Cal.2d 299, 304, 340 P.2d 598; People ex rel. Dept. Pub. Wks. v. Lagiss (1963) 223 Cal.App.2d 23, 33, 35 Cal.Rptr. 554.)

The city seeks to acquire, possibly for transfer to other private parties, “(a)ll of those rights associated with, incidental to, deriving from, or related to the Franchise Certificate of Membership issued by the National Football League and signifying the rights associated with permission to operate a National Football League professional football club franchise in Oakland, California; in addition thereto, said property consists of all rights and privileges of Oakland Raiders, Ltd., relating to football player contracts, agreements, options, or other contractual or quasi-contractual matters associated with the operation of said football club franchise ” The crucial issue in the appeal is whether the intangible property so described is subject to condemnation.

The power of eminent domain has long been defined and limited by statute. “This statutory power of taking property from the owner, without his consent, is one of the most delicate exercises of governmental authority. It is to be watched and guarded with jealous scrutiny. Important as the power may be to the government, the inviolable sanctity, which all free constitutions attach to the rights of property of the citizen, constrains the strict observance of the substantial provisions of law, which are prescribed as modes of the exercise of the power, and to protect it from abuse. All statutory modes of divesting titles are strictly construed, and to be strictly followed.” (Bensley v. The Mountain Lake Water Co. (1859) 13 Cal. 306, 315.) Statutes which confer the power of eminent domain provide for the taking of property without the owner's consent; therefore, they should be strictly construed. (Central Pacific Ry. Co. v. Feldman (1907) 152 Cal. 303, 306, 92 P. 849; McCarty v. Southern Pacific Co. (1905) 148 Cal. 211, 216, 82 P. 615; S.F. A.W. Co. v. A.W. Co. (1869) 36 Cal. 639, 644; City of Anaheim v. Michel (1968) 259 Cal.App.2d 835, 838, 66 Cal.Rptr. 543.) Although the grant of power is not to be broadened by implication, construction of enabling statutes should not be so narrow as to defeat the evident purpose of the Legislature. (Central Pacific Ry. Co. v. Feldman, supra, 152 Cal. 303, 306, 92 P. 849; City of Anaheim v. Michel, supra, 259 Cal.App.2d 835, 838, 66 Cal.Rptr. 543.) Because the power of eminent domain “ ‘ is one of the attributes of sovereignty most fraught with the possibility of abuse and injustice ’ ” (City of Los Angeles v. Koyer (1920) 48 Cal.App. 720, 725, 192 P. 301), expansion of the traditional eminent domain powers should be carefully scrutinized.

The city concedes that the taking attempted here would not have been possible under the former law. “While personal property in theory is subject to eminent domain, the California Constitution and (former) Code of Civil Procedure section 1240, subdivision 1, relate to real property and real property interests, in practice. (Cf. Heimann v. City of Los Angeles (1947) 30 Cal.2d 746, 756, 185 P.2d 597( ).)” (Parking Authority v. Nicovich (1973) 32 Cal.App.3d 420, 430, 108 Cal.Rptr. 137; see 29 Cal.Jur.3d, Eminent Domain, s 17, p. 128.) It is contended, however, that the present California eminent domain statute3 which was enacted on the recommendation of the Law Revision Commission to modernize, harmonize and clarify the provisions of the former law, authorizes the taking attempted here. Contemporaneous expressions of the Commission concerning the purpose and construction of the enactment are to be accorded deference where the language proposed by the Commission was adopted without significant change. (Keeler v. Superior Court (1970) 2 Cal.3d 619, 630, 87 Cal.Rptr. 481, 470 P.2d 617; Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 249-250, 66 Cal.Rptr. 20, 437 P.2d 508.) This is particularly true where the Legislature has acknowledged that legislative intent was reflected in the Law Revision Commission comments. (See Report of Assembly Committee on Judiciary on Assembly Bills, page 5183, 3 Assem.J. (1975-1976 Reg. Sess.); Report of Senate Committee on Judiciary on Assembly Bills, pages 6537-6538, 4 Sen.J. (1975-1976 Reg.Sess.). Although the new eminent domain statute revised the language and structure of the former law, a mere change in phraseology incident to a statutory revision or amendment does not express a change of meaning absent a clear intent to make such a change. (Mosk v. Superior Court (1979) 25 Cal.3d 474, 493, 159 Cal.Rptr. 494, 601 P.2d 1030; Hammond v. McDonald (1942) 49 Cal.App.2d 671, 681, 122 P.2d 332.) Nonetheless, material changes in the phraseology of a legislative enactment may demonstrate an intention on the part of the Legislature to alter the meaning of the statute. (McDonough Power Equipment Co. v. Superior Court (1972) 8 Cal.3d 527, fn. 5 at p. 534, 105 Cal.Rptr. 330, 503 P.2d 1338; Twin Lock, Inc. v. Superior Court (1959) 52 Cal.2d 754, 761, 344 P.2d 788.) The rationale behind the statutory revision as well as the sources of the new law are explained by the California Law Revision Commission: “Although Title 7 (commencing with Section 1247) of Part 3 of the Code of Civil Procedure purports to be a comprehensive and systematic statement of the law of eminent domain, in fact it falls far short of that. Enacted over 100 years ago, its draftsmanship does not meet the standards of modern California statutes. There are duplicating and inconsistent provisions. There are long and complex sentences that are difficult to read and more difficult to understand. There are sections that are obsolete and inoperative. There is a total lack of statutory guidance in certain critically important areas of the law, and there are other areas that are treated in the most cursory fashion. Nor is Title 7 the exclusive statutory source of eminent domain law. There are hundreds of provisions in other statutes, both codified and uncodified, that duplicate provisions of the general eminent domain statute or that are unnecessarily or undesirably inconsistent with it.

“These deficiencies call for a thorough revision and recodification of the California law of eminent domain. In formulating the comprehensive Eminent Domain Law, the Commission has looked to reform efforts in a number of other jurisdictions and has reviewed the eminent domain law of every jurisdiction in the United States. The Commission has examined the draft of the Model Eminent Domain Code and the Uniform Eminent Domain Code. The Commission has drawn upon all these sources in producing a modern Eminent Domain Law within the existing California statutory framework.

“The comprehensive Eminent Domain Law proposed in this report will replace the existing general eminent domain title of the Code of Civil Procedure. Its major purpose is to cover, in a comprehensive manner, all aspects of condemnation law and procedure. It will constitute a complete and well organized compilation of the law and will provide one uniform statute applicable to all condemnors and all condemnation proceedings. Its enactment will permit the repeal of approximately 125 sections and the amendment of approximately 150 sections to delete more than 28,000 words of unnecessary language.” (Eminent Domain Law (Dec.1975) 13 Cal.Law Revision Com.Rep. (1975) pp. 1010-1011, fns. omitted.)

Although certain important changes were enacted, “the Eminent Domain Law is basically a reorganization and restatement of existing California law with numerous minor changes of a technical or corrective nature.” (Recommendation Proposing the Eminent Domain Law (Dec.1974) 12 Cal.Law Revision Com.Rep. (1974) p. 1619.)

Where the consolidation, revision or codification of statutes occur, the Legislature generally intends to secure clarification, modernization and organization of provisions, and does not intend to affect the continuous operation of the law. (Bishop v. City of San Jose (1969) 1 Cal.3d 56, 65, 81 Cal.Rptr. 465, 460 P.2d 137; In re Dapper (1969) 71 Cal.2d 184, 189, 77 Cal.Rptr. 897, 454 P.2d 905, cert. den. 397 U.S. 905, 90 S.Ct. 906, 25 L.Ed.2d 90.) It is against this background of statutory interpretation that the novel action commenced by the City of Oakland must be evaluated.

The new enactment relied on by the city provides: “A city may acquire by eminent domain any property necessary to carry out any of its powers or functions.” (Gov.Code, s 37350.5.) Property is defined to include real and personal property and any interest therein. (Code Civ.Proc., s 1235.170.)4 The Oakland City Charter does not impose other restrictions on the city's power of eminent domain.5 Thus we must determine whether the definition of property subject to eminent domain was broadened by the new enactment to include intangible property not connected with realty. The contemporaneous expressions of the Law Revision Commission point strongly against so drastic a departure from the prior law. There is no indication in the statutes or comments thereto that the revision was intended to allow condemnation of a business or other intangibles. Although personal property is subject to the power of eminent domain, no indications in the Law Revision Commission comments or background study suggest that inclusion of such power within the eminent domain statutes was intended. (See Kaplan v. Superior Court (1971) 6 Cal.3d 150, 158-159, 98 Cal.Rptr. 649, 491 P.2d 1, app. dismd. 407 U.S. 917, 92 S.Ct. 2452, 32 L.Ed.2d 803.) No express authority exists for the exercise of the power of eminent domain asserted by the city here. (City of Beaumont v. Beaumont Irr. Dist. (1965) 63 Cal.2d 291, 293, 46 Cal.Rptr. 465, 405 P.2d 377; People v. Superior Court (1937) 10 Cal.2d 288, 296, 73 P.2d 1221.)

We conclude that the statute does not authorize condemnation of the diverse contract rights necessary to operation of the Raiders' business enterprise. Therefore, we need not consider whether the trial court acted correctly when it decided that the attempted taking was not for a public purpose. (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19, 112 Cal.Rptr. 786, 520 P.2d 10; Feldman v. Sacramento Bd. of Realtors, Inc. (1981) 119 Cal.App.3d 739, 746, 174 Cal.Rptr. 231; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, s 226, pp. 4215-4216.)

The judgment is affirmed.


1.  California Constitution, article I, section 19, provides in part: “Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.”

2.  Code of Civil Procedure section 1240.010 provides: “The power of eminent domain may be exercised to acquire property only for a public use. Where the Legislature provides by statute that a use, purpose, object, or function is one for which the power of eminent domain may be exercised, such action is deemed to be a declaration by the Legislature that such use, purpose, object, or function is a public use.”

3.  Code of Civil Procedure sections 1230.010-1273.050, effective July 1, 1976.

4.  The Law Revision Commission comment to this section relates: “Section 1235.170 is intended to provide the broadest possible definition of property and to include any type of right, title, or interest in property that may be required for public use. See Section 1235.125 (‘interest’ defined) (and comments thereto). If the property authorized to be taken is limited by the statutory grant of condemnation authority to property of a certain type, an attempt to take property other than the type designated in the grant of condemnation authority is precluded by Section 1240.020. See Section 1240.020 and Comment thereto.“Section 1235.170 eliminates the need for duplicative listings of property types and interests subject to condemnation. Cf., e. g., former Section 1240 (real property, tide and submerged lands, franchises for any public utility, rights of way and any and all structures and improvements thereon) and former Section 1238(3) (‘ponds, lakes, canals, aqueducts, reservoirs, tunnels, flumes, ditches, or pipes, lands, water system plants, buildings, rights of any nature in water, and any other character of property necessary’ for certain purposes). For the authority of an authorized condemnor to acquire property of any type necessary for public use, see Section 1240.110 (right to acquire any necessary interest in property).” (Cal.Law Revision Com. com. to Code Civ.Proc., s 1235.170, 19 West's Ann.Code Civ.Proc. (1981 pocket supp.) p. 68.)

5.  Section 106 of the Charter of the City of Oakland provides: “General Powers. The City shall have the right and power to make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in this Charter; provided, that nothing herein shall be construed to prevent or restrict the City from exercising or consenting to, and the City is hereby authorized to exercise, any and all the rights, powers and privileges heretofore or hereafter granted or prescribed by the general laws of the State including those specifically applicable to general law cities.”The city charter may “provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general law.” (Cal.Const., art. XI, s 5, subd. (a).)

CHRISTIAN, Associate Justice.

CALDECOTT, P. J., and RATTIGAN, J., concur. Hearing granted; BROUSSARD, J., did not participate.