PEOPLE v. RICCIARDI (1940)

This proceeding is one in eminent domain instituted by plaintiff to condemn a portion of defendants' property for the purpose of widening a state highway fronting thereon. Defendants are the owners of property located at the northeast corner of Rosemead and Ramona boulevards in the county of Los Angeles, both of which are state highways. The property in question is improved with a modern slaughterhouse and retail meat market, both set back from the highway so as to afford parking facilities. Facing Rosemead boulevard is a residence with a large storage basement. Ingress and egress is afforded the property in its entirety along both boulevards, with driveways leading into the property from the two highways. The proposed improvement involves the separation of the grade of Rosemead boulevard and the tracks of the Pacific Electric Railway Company on Ramona boulevard to permit of the construction of an underpass on Rosemead. The last-named boulevard is one of the main arteries of traffic from downtown Los Angeles to the district of Rosemead and points north and east. The railway tracks along Ramona boulevard constitute the main interurban line of the railway company from Los Angeles to San Bernardino.

At present Rosemead boulevard fronting on defendants' property is 60 feet wide. By the proposed improvement it is intended to make such boulevard 280 feet wide. It will consist of four lanes, two in the underpass, and two outer lanes on each side thereof, designated as service roads, the latter being 30 feet wide. Rosemead boulevard will commence to pass under Ramona boulevard at a point southerly thereof and will come to grade northerly thereof at Glendon way, the latter of which is the first cross or insecting street north of defendants' property, approximately 525 feet north thereof at the farthest point.

Ramona boulevard will consist of a four-lane highway, with a free way on each side of the railway tracks. The outer lane on Rosemead boulevard will run into the outer lane on Ramona boulevard at the corner of defendants' property. The outer lanes join the inner lanes of Rosemead at the aforesaid Glendon way. On Ramona boulevard they join the main-traveled portion some distance easterly of defendants' property. The outer lanes are all at the grade of defendants' property. It should be noted, however, that as part of the underpass there will be constructed upon the westerly portion of the property taken from defendants a wall varying from 10 to 7 feet in height, which will, of course, change the grade of the main highway designated as Rosemead and which will effectually block all ingress and egress to and from Rosemead boulevard except by traversing the service road to Glendon way and then making a left turn into the boulevard.

Following trial by jury, a verdict was rendered awarding defendants for what is designated parcel 1 the sum of $9,000, and the further sum of $15,000 as damages to the remaining property by reason of the severance and the construction of the improvement in the manner proposed. For what was referred to as parcel 2 the jury awarded the sum of $350, allowing no damages to the remaining portion of the property. Upon this appeal it is the award for damages to the remainder of defendants' property occasioned by the severance of parcel 1 that is in the main challenged by appellant.

As a first ground for reversal of the judgment herein, it is urged that there is no evidence in this case of damage to the right of ingress or egress, in that the record is barren of testimony showing any interference with such ingress and egress to and from defendants' property abutting the highway. In this claim appellant cannot be sustained. As abutting property owners on the highway in question, respondents not only possessed the right to the use of the street in common with all other members of the public, but they also had a private right or easement for the purposes of ingress and egress to and from their property. Not only are they entitled not to have this right taken away or destroyed for public purposes without just compensation, but they are entitled not to have the right in question substantially impaired or interfered with for public purposes unless justly compensated therefor. McCandless v. City of Los Angeles, 214 Cal. 67, 71, 4 P.2d 139; Eachus v. Los Angeles Ry. Co., 103 Cal. 614, 37 P. 750, 42 Am.St.Rep. 149. It has been held, and we are in accord with the holding, that the interest in the street which is peculiar and personal to the abutting lot owner and which is distinct and different from that of the general public, is the right to have free access to his lot and building substantially in the manner he would have enjoyed the right in case there had been no interference with such street. Indiana, B. & W. Ry. Co. v. Eberle, 110 Ind. 542, 11 N.E. 467, 59 Am.Rep. 225.

In the instant case appellant asserts that the evidence discloses no impairment of access to the public highway, but rather establishes only such damage as results from inconvenience and circuity of travel after leaving the property via the service road and from “loss of visibility” of the property resulting alone from diversion of traffic through the underpass, and that all of such damage is damnum absque injuria. The private easements possessed by an abutting owner are thus defined in Williams v. Los Angeles Ry. Co., 150 Cal. 592, 594, 89 P. 330: (1) the right of ingress and egress to and from the lot over and by means of the adjacent portion of the street; (2) the right to receive light from the space occupied by the street and to the circulation of air therefrom; (3) the right to have the street space kept open so that signs or goods displayed in and upon the lot may be seen by the passers-by, in order that they may be attracted as customers to patronize the business carried on thereon. Surely it cannot with reason be argued that the elimination of access to both Rosemead and Ramona boulevards which respondent possessed and the substitution of the service road did not impair or even destroy a great part of the value of respondents' property. Appellant cannot relieve itself of liability by pleading or proving that the owners of the property may reach the same from another direction, viz., by Glendon way and the newly constructed service road. The thing of which respondents have been deprived for the public good is direct access to a public highway. True, the installation of the service road and the purpose it serves was to be considered in estimating the damage suffered, for it is manifest that the damages are not so great as they would be if access to the highway were entirely cut off. But respondents are entitled to receive whatever damages they sustained by reason of the impairment of their easement of direct access to the highway. That, after completion of the improvement, respondents could not make use of the highway in the same manner as they could prior to that time, is too clear to call for further discussion. It is equally apparent that respondents' right to have their customers come to their place of business without unreasonable hindrance or interruption was also impaired. The partial impairment of these rights constituted a legal injury, differing only in degree from their total destruction. As was said in Fairchild v. Oakland & Bay Shore Ry. Co., 176 Cal. 629, 169 P. 388, 389, respondents' right of access in the case at bar “is precisely one of those rights of action for the damaging of property which, if it did not exist before, came into existence by virtue of our constitutional amendment granting a recovery for the damage as well as for the taking of property for public use”. The fact that respondents were left a means of ingress and egress other than the one impaired or destroyed is not a controlling factor in the determination of their right to recover, but is only a circumstance materially affecting the amount of damages to which they may be entitled. The enlargement of the constitutional provision (sec. 14, art. I, Const. of Calif.), by prescribing that “private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for, the owner”, entitles such owner to recover for injuries of the type sustained in the case at bar, which are over and above the common injury sustained by other abutters on the street or the general public. Reardon v. City and County of San Francisco, 66 Cal. 492, 506, 6 P. 317, 56 Am.Rep. 109. In the case before us such injury was occasioned by the property having no frontage whatever left on Rosemead boulevard. It is only by continuing south and the service road that access may be had to the portion of Ramona boulevard provided for west-bound traffic exclusively. The property is cut off from all direct access to Rosemead boulevard. This condition is occasioned by the construction of the concrete wall along the westerly portion of the land taken, and which will support the slopes occasioned by the change of grade on Rosemead boulevard adjacent to respondents' property, and which wall, as heretofore pointed out, varies in height from 10 to 17 feet as the depth of the underpass cut increases.

Contrary to appellant's claim, it is the law that whether the infringement of respondents' right is special and peculiar to their property and has resulted in a substantial impairment of such right is a question of fact, and was therefore properly submitted to the jury. McCandless v. City of Los Angeles, supra.

Finally, appellant assigns as error the giving of and refusal to give certain instructions. It would unduly prolong this opinion to herewith set forth the challenged instructions which were given. Suffice it to say that they were in conformity with the law as herewith expounded. Instruction No. 17 is fully supported by the holding in Eachus v. Los Angeles Ry Co., supra, and McCandless v. City of Los Angeles, supra. The last-cited case also furnishes authority for the law embodied in instructions Nos. 19, 21 and 22, while instruction No. 18 was authorized by the provisions of section 14 of article I of our state Constitution, and instruction No. 20 is in harmony with the decision in Lane v. San Diego Elec. Ry. Co., 208 Cal. 29, 33, 280 P. 109.

Appellant's proposed instruction No. 22 was properly refused. By it the jury would have been advised in part as follows:

“* In this respect, I instruct you that the service road to be constructed, fronting defendants' property, is to be considered by you as an integral part of the public highway, and if the defendants have reasonable access to said service road they are not entitled to any damages for any alleged interference with egress to or from their property.

“Any inconvenience suffered by the defendants after they leave the boundaries of their property after the construction of the improvement in the manner here proposed will be the same as that suffered by the public generally. Such inconvenience is not to be considered by you as the defendants are not entitled to any damage therefor.”

This instruction clearly invaded the province of the jury by advising them concerning an issue of fact upon which it was their prerogative to find. McCandless v. City of Los Angeles, supra.

Appellant's proffered instruction No. 23 was clearly a usurpation of the jury's functions, in that by it the triers of fact would have been instructed that as a matter of law under the evidence presented “* the defendants' access to the proposed highway will not be interfered with in any respect, that is to say, their access to the highway will not be substantially impaired, and under the law defendants are not entitled to recover damages for any alleged injuries to their right of ingress and egress.” Upon the authority of McCandless v. City of Los Angeles, supra, and for the reasons hereinbefore in this opinion stated, it was a question of fact whether the infringement of respondents' right was special and peculiar to their property, as also was the question whether such infringement resulted in a substantial impairment of their right.

By reason of the foregoing, it follows that the judgment from which this appeal is taken should be, and it is, affirmed.

WHITE, Justice.

We concur: YORK, P.J.; DORAN, J.