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District Court of Appeal, Second District, Division 2, California.


Civ. 10241.

Decided: August 05, 1935

Ray L. Chesebro, City Atty., Frederick Von Schrader, Asst. City Atty., and Thatcher J. Kemp, Deputy City Atty., all of Los Angeles, for appellant. Wendell W. McCanles, of Los Angeles, for respondent.

This is an appeal from a judgment entered on a verdict in favor of the plaintiff in an action for damages to real property. The defendant city, through its city council at a regular meeting, passed a resolution adopting the report of its tunnels, bridges, and viaducts committee and instructed its board of public works “to prepare plans, consider and enter into a contract” for the construction of an underground subway in the street in front of the plaintiff's property. This order was executed by its board of public works, resulting in an obstruction in the sidewalk in front of plaintiff's property consisting of an open cut and stairway approximately 20 feet in length, paralleling plaintiff's front property line and about 7 feet distant therefrom, around which iron railings were constructed above the surface of the sidewalk. The stairway and railings were built opposite the center portion of the plaintiff's property.

This is not the first trial nor the first appeal of the case, but the second. In the first trial a judgment was entered in favor of the defendant on the theory that the complaint did not state a cause of action. On appeal to the Supreme Court the decision of the lower court was reversed and the case remanded for further proceedings (McCandless v. City of Los Angeles, 214 Cal. 67, 4 P.(2d) 139, 140), and the opinion therein became the law of the case. In that opinion Mr. Justice John W. Shenk, who is especially learned in law affecting municipalities, speaking for the court, said:

“Section 8 of article 1 of the Constitution of 1849 provided that private property should not be taken for public use without just compensation. Section 14 of article 1 of the Constitution of 1879 enlarged this protection to the property owner by providing that private property shall not be taken or damaged for public use without just compensation. This enlargement of the constitutional provision first came before this court for consideration in Reardon v. San Francisco, 66 Cal. 492, 6 P. 317, 56 Am. Rep. 109, wherein the term ‘damaged’ was held to assure a right to compensation in addition to that theretofore obtaining; that is, ‘a guaranty against damage where none previously existed.’ * * *

“In Brown v. Board of Supervisors, 124 Cal. 274, at page 280, 57 P. 82, 83, the court said: ‘The property which an abutting owner has in the street in front of his land is the right of access and of light and air, and for an infringement of these rights he is entitled to compensation * * * and any infringement thereof gives him a right of action. * * * Any act of the municipality by which that easement is destroyed or substantially impaired for the benefit of the public is a damage to the lot itself, within the meaning of the constitutional provision, for which he is entitled to compensation.’

“In the case at bar it cannot be questioned that the plaintiff, as an abutting property owner on Sunset boulevard, possesses not only the right to the use of the street in common with all other members of the public, but also a private right or easement for the purposes of ingress and egress to and from her lot, which right may not be taken away or destroyed or substantially impaired or interfered with for public purposes without just compensation therefor.”

It is the first and fundamental contention of the defendant that the trial court erred in refusing to give the following instruction: “You are instructed that though it is true that the power of a municipality to regulate is not the power to destroy in its absolute sense, it is nevertheless true that the right to regulate frequently and as a necessary sequence carries with it the right so to control and limit the use or enjoyment of private property as to amount to its destruction, and in such cases private interests must yield to the public advantage, and, accordingly, where the police power of the municipality is legitimately exercised, uncompensated submission is exacted of the property owner, if his property be damaged.” It is obvious from what has heretofore been quoted from the language of the Supreme Court in the first appeal of this case that said instruction is not in line with the law of the case, and also it is obvious that the instruction has no relevancy to the facts which confront us.

Appellant complains also of other instructions, some of which the court gave and some of which the court refused to give when requested so to do by the defendant. But its complaints are built upon the same contention and are without merit.

The defendant's final contention is that a prerequisite to stating and also to sustaining a cause of action against the defendant under the facts of this case is an allegation and evidence to prove it, that a claim for damages has been presented to the board of public works of the defendant city. It should be said that this contention of the defendant was not urged at the first trial, nor on the first appeal, nor even at the second trial, but was urged as a definite issue for the first time on this appeal. The Supreme Court on the first appeal, in deciding whether or not the complaint stated a cause of action, said: “In addition to the foregoing, it was alleged in the amended complaint * * * that a demand for such compensation duly made to the city council was rejected. * * * We are satisfied that the complaint herein states a cause of action and that the extent of the alleged damages is a question of fact.” In this connection it should also be noted that as late as the second trial the defendant formally stipulated that plaintiff's claim was filed in due time and form with the city clerk of the city of Los Angeles and was rejected. We find no merit in the appeal.

Judgment affirmed.

CRAIL, Justice.

I concur: STEPHENS, P. J.

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Docket No: Civ. 10241.

Decided: August 05, 1935

Court: District Court of Appeal, Second District, Division 2, California.

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