AYRES v. CITY COUNCIL OF CITY OF LOS ANGELES (1948)

This case involves the interpretation of portions of the California Subdivision Map Act (sections 11500 et seq., Business and Professions Code), the constitutionality of a portion thereof, and the validity of the methods employed by respondent city of Los Angeles in administering the subdivision laws of the state and city.

Appellant, a Los Angeles subdivider, pursuant to the Subdivision Map Act, submitted to the planning department of the city of Los Angeles a tentative subdivision map of a thirteen acre tract in what is generally referred to as the Westchester district. After investigation, the city council of respondent adopted the recommendation of its planning commission and imposed upon appellant a number of conditions or requirements as conditions precedent to approval of the map. Appellant in seeking a writ of mandate in the trial court to require respondent to approve its map, claimed that such writ should be issued without his complying with four of the conditions precedent to the approval of the map imposed by respondent.

These are the four questioned conditions:

1. That appellant dedicate a strip ten feet wide along the front of his tract for the widening of Sepulveda boulevard on which his subdivision abuts.

2. That appellant dedicate for street purposes the southerly point or tip of his subdivision which is traingular.

3. That as to 77th Street, which street traverses appellant's subdivision, he dedicate a width of 80 feet rather than 60 feet.

4. That appellant set aside adjacent to the ten-foot widening strip an additional ten-foot strip to be retained in his ownership but to be restricted to the planting of trees and shrubbery and which will prevent ingress and egress to and from Sepulveda Boulevard.

The trial court held that respondent validly imposed all of the four requirements as conditions precedent to the approval of appellant's map and in so doing made the following finding which is supported by substantial evidence:

‘That petitioner's [appellant's] subdivision is located in and is a part of an area of the City of Los Angeles known as the Westchester District; that said district or area consists of 3023 acres, bisected by two principal traffic arteries, i. e., Sepulveda Boulevard, which runs in a northerly and southerly direction, and Manchester Boulevard, which runs in an easterly and westerly direction; that the Westchester area extends approximately one mile to the south of Manchester and approximately one and one-half miles to the north; it extends approximately one mile to the east and one mile to the west of Sepulveda Boulevard; that when said Westchester District was about to be first subdivided in 1941, the entire area was held in three separate ownerships, i. e., Los Angeles Extension Company, Security-First National Bank of Los Angeles and the Superior Oil Company; that the Superior Oil Company was, at that time and at all times since has been, represented by petitioner, Donald Ayres, as its subdivider and selling agent; that in 1941 said three owners, including petitioner as agent for Superior Oil Company, worked out a general plan of development of the Westchester area with city planning officials and agreed that the two boulevards above-named should become the principal traffic arteries of the area and that the business district should be located on Sepulveda Boulevard immediately south of Manchester Boulevard and that the development of said business district should be placed in the hands and under the control of petitioner. It was further agreed that the area should be subdivided by using the cellular type of subdivision, which type is designed to minimize traffic through the developed area and to keep most of the traffic on the principal through boulevards, and which type requires that all lots abutting the principal throughfares should have their rears upon said throughfares. Said type of subdivision also minimizes the amount of land necessary to be dedicated for street purposes and thus saves the owner considerable money by retaining more land to sell. That pursuant to such agreement, the area was developed in the manner aforesaid; that as each subdivision was presented to the city officials for approval, requirements insuring uniformity and conformance to said agreement was imposed and in each case complied with; that as a tentative map for each subdivision fronting upon Sepulveda Boulevard was presented to the city officials, conditions were imposed insuring conformance to said agreement and requiring the dedication of a 10-foot strip for the widening of Sepulveda Boulevard, except in the business area above-referred to wherein a dedication of a 13-foot strip on each side of Sepulveda Boulevard was required; that, excepting the business district, all such subdivisions were also required to set aside a planting strip varying in width from ten feet to twenty feet, excepting one instance where by error a planting strip of only five feet was required; that many subdivisions fronting on Sepulveda Boulevard have been approved and final maps relating thereto filed with said conditions imposed and all subdividers have complied with said requirements; that most of the Sepulveda Boulevard frontage has been subdivided and that in all cases said requirements were complied with; that several such subdivisions were owned by the Superior Oil Company and subdivided by petitioner as real estate agent; that petitioner has always complied with said conditions requiring the dedication of additional width for Sepulveda Boulevard and a planting strip along said boulevard; that not until petitioner filed his tentative map for the tract now before the court, which tract he owns in fee and is not selling as agent for another, has any person officially objected to the imposition of said conditions; that the uniform pattern for the subdivision has until this time been carried out and the development of Sepulveda Boulevard frontage has been uniformly made, including said dedicated strips for the widening of the boulevard and the setting aside of said planting strips.’

Appellant's Contentions.

The contentions of appellant are as follows:

I. That conditions 1 and 2, which are set forth above, are invalidly imposed because none of them are authorized by any of the provisions of the subdivision map act;

II. That even if conditions 1 and 2 are authorized by the subdivision map act, said act, in so far as it authorizes said conditions, is unconstitutional in that it permits the taking of property without due process of law and, under guise of the police power, constitutes an exercise of the power of eminent domain without providing compensation therefor. Appellant claims that the imposition of said conditions is not reasonably related to the protection of public health, public safety, publc morals, or the general welfare of the people;

III. That as to condition 3, appellant concedes that it is authorized by the subdivision map act but contends that the required width of the street is unreasonable and excessive.

IV. That the city of Los Angeles has for many years improperly enforced the subdivision laws and has administered them by whim or caprice and without there being a master plan or any plan of city development;

V. That condition 4 is invalid because not authorized by any provisions of the subdivision map act.

The first four of these contentions should be resolved in favor of respondents for the reasons hereinafter stated, many of which are set forth in respondent's brief and which we approve and adopt.

Discussion of Appellant's Contentions

I.

Appellant's first contention is unsound. Respondent city was operating under a freeholder's charter, and since zoning is a municipal affair (Hurst v. City of Burlingame, 207 Cal. 134, 142, 277 P. 308), the Planning Act of 1929 (Vol. 2, Deering's Calif. Gen. Laws, Act 5211b, p. 1768) was not applicable to the facts of the present case. The applicable statutes are to be found in sections 11525 et seq., and 11510 et seq., of the Business and Professions Code, which pertinent sections, so far as applicable here, are as follows:

Section 11525 of the Business and Professions Code provides that:

‘Control of the design and improvement of subdivisions is vested in the governing bodies of cities and of counties * * *.’

Section 11510 reads:

“Design' refers to street alignment, grades and widths, alignment and widths of easements and right of ways for drainage and sanitary sewers and minimum lot area and width.'

Section 11511 reads:

“Improvement' refers to only such street work and utilities to be installed, or agreed to be installed, by the subdivider on the land dedicated or to be dedicated for streets, highways, public ways, and easements, as are necessary for the general use of the lot owners in the subdivision and local neighborhood traffic and drainage needs, as a condition precedent to the approval and acceptance of the final map thereof.'

The last two sections just mentioned are to be read together. (In re Petraeus, 12 Cal.2d 579, 583, 86 P.2d 343.) Section 11510, defining ‘design’ as refering to ‘street alignment, grades and widths,’ even if standing alone, obviously encompasses streets in a generic sense. It cannot therefore be said that if Sepulveda boulevard is a highway it is not a street. The term ‘highway’ includes streets within cities (B & H. Transportation Co. v. Johnson, 122 Cal.App. 451, 453, 10 P.2d 506, and cases therein cited). However, Section 11511 provides that ‘improvement’ refers to work and utilities to be installed on the land dedicated or to be dedicated not only for streets alone but also for highways and public ways. Reading the two sections together, it is clear that the term ‘design’ includes not only streets but also highways and public ways. Sepulveda boulevard is surely a highway. Also to claim the term ‘highway’ does not include a state highway is not sound in view of the case of City of Long Beach v. Payne, 3 Cal.2d 184, 44 P.2d 305, which held that the word even includes a canal; but whether or not ‘highway’ includes a state highway is not of vital importance because the term ‘public way,’ which appears in section 11511, was in 1940 held to include a state highway. See Ritzman v. City of Los Angeles, 38 Cal.App.2d 470, 475, 476, 101 P.2d 541. The subdivision map act (Stats.1937, Ch. 670) was not placed in the Business and Professions Code until 1943, at which time the sections above referred to were amended in minor respects. These changes were made three years after the Ritzman case, and the Legislature retained the words ‘public way’ in the sections. Therefore, because the Ritzman case construed ‘public way’ to include a state highway, and the Legislature subsequently used that term by retaining it when sections 11510 and 11511 were amended, the presumption is that the Legislature used the term ‘public way’ with the intent that it should include a state highway. (City of Long Beach v. Payne, 3 Cal.2d 184, 191, 44 P.2d 305.)

Appellant contends that although a subdivider can be compelled to dedicate land from his subdivision for a street which traverses the subdivision, he cannot be compelled to dedicate land to widen a street which abuts it and which is already in existence. He contends that the local neighborhood traffic needs set forth in section 11511 refer only to traffic within the boundaries of the subdivision. Common sense dictates a different interpretation. If the Legislature intended to deal only with the traffic needs of the lot owners in the subdivision, it would have said so. But it went further and stated that improvements mean not only those which are necessary for the lot owners in the subdivision but also those necessary for local neighborhood traffic needs. No plainer language could have been employed. The neighborhood traffic needs are obviously those pertaining not only to the subdivision itself, but to the neighboring areas. It is quite apparent that the development and building up of a subdivision contributes its share of additional traffic to an abutting traffic artery, and that as various neighboring subdivisions are developed, they each contribute an additional traffic load to the highway or traffic artery which affects the traffic needs of all of the neighboring areas. The Legislature recognized this fact in wording sections 11510 and 11511. To read an exemption into the subdivision map act which would immunize subdividers against requirements that they dedicate land which is necessary to widen the abutting streets or highways would ignore the plain language of the law, violate its obvious purpose and permit a subdivider to increase the traffic load of those highways without taking any steps to alleviate the crowded conditions to which his subdivision contributes and makes the widening necessary.

Appellant takes the position that if the widening strip as well as the planting strip benefits anyone other than the residents of the subdivision itself, the requirements are void. But the benefits flowing from compliance with the requirements need not be so limited. It would seem that if the immediate locality is benefited so would the entire city receive some indirect and possibly lesser benefit.

In Dwyer v. City Council, 200 Cal. 505, 253 P. 932, 935, an ordinance rezoning a residential area into a business district was held to be subject to referendum to be participated in by all of the voters of the city. Inasmuch as the ordinance directly affected an area which comprised only about 1/550 part of the city, it was contended that only those persons who were owners or residents of the affected area and, perhaps, those within the ‘area of protest,’ were involved and that a city-wide referendum was improper. In rejecting the contention, the court quoted from Zahn v. Board of Public Works, 195 Cal. 497, 513, 234 P. 388. In the opinion of Dwyer v. City Council, supra, appears this quotation:

“The power of the city council to zone is not limited in our opinion to the protection of established districts. To so hold would be to defeat in a large measure the very purpose of zoning which is to control future development in the best interest of the city. Zoning in its best sense looks not only backward to protect districts already established but forward to aid in the development of new districts according to a comprehensive plan having as its basis the welfare of the city as a whole.' (Italics supplied.)'

II

Appellant's second contention is likewise without merit. The act as above interpreted violates no constitutional provisions. This matter is not entirely new to the courts and the authority of planning officials to make requirements of the nature now being considered has been sustained in each case. The cases recognize the wide distinction between the taking of property without compensation from an owner who is asking nothing of the governmental authority, on the one hand, and the case of a subdivider who, upon his own initiative, asks the local authority for the privilege of having his tract recorded so that he can sell by lot and block description and thereby avoid the generally unsatisfactory plan of selling by metes and bounds. In brief, it is held that there is no taking of property but only a giving by the subdivider in return for having his tract recorded.

A case directly in point is Newton v. American Security Co. (1941), 202 Ark. 943, 148 S.W.2d 311, 313. It appeared that the petitioner therein sought to subdivide his property into 24 parcels and offered to dedicate for road purposes 30-foot service reads along the north and east sides of his property. The land adjoining his property on these sides was undeveloped and the roads would lie entirely on his property. The property was in the county but under the state law the nearby city of Little Rock was required to approve the plat before it could be recorded. The planning commission of Little Rock refused to approve the plat unless the existing roads on the south and west sides of the property which were already developed to 40-foot width should be widened by petitioner dedicating an additional ten feet from his side. The county planning board had previously adopted as its master plan for county roads the requirement that they should have a minimum width of 60 feet. The city planning commission found that the existing 40-foot roads served a thickly settled surrounding community and that ‘In order to have an orderly development of thickly populated rural areas that will meet future transportation problems, a minimum of 60 feet right of way is necessary.’ The petitioner therein refused to dedicate an additional ten feet for said roads. It also appeared that if he dedicated the required ten feet, the road in front of his property would be only 50 feet in width until such time as the property owner across the road dedicated an additional ten feet, and that said county roads in each direction from petitioner's property would remain 40 feet in width. The petitioner claimed that the requirement took property without compensation, but the court stated on page 314, of 148 S.W.2d:

‘Of course one's property cannot be taken for public use without compensation, but the evidence in this case clearly shows that on one is attempting to take the property of appellee. The record shows that the appellee itself is seeking to take advantage of the County's and City's Planning Boards and undertaking to file a plat, and seeks by this proceeding to compel the clerk to record the plat, although when submitted to the Planning Boards both the County and City Planning Boards refused to approve appellee's plat. There was no law requiring petitioner to file a plat, and if the appellee or the Planning Boards or any one else sought to take or damage appellee's property without just compensation therefor, such persons would be prohibited from doing so. But there is nothing in the record in this case that indicates that anyone is seeking to take the property of appellee; no effort it made to take it.’

The court, in discussing the constitutionality of the requirements, quoted from Euclid, Ohio, v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 118, 71 L.Ed. 303, 54 A.L.R. 1016, as follows:

‘Regulations, the wisdom, necessity, and validity of which, as applied to existing conditions, are so apparent and they are now uniformly sustained, a century ago, or even a half century ago, probably would have been rejected as arbitrary and oppressive.’

A similar situation appeared in Ridgefield Land Co. v. City of Detroit (1928), 241 Mich. 468, 217 N.W. 58. A general plan had been adopted by the Common Council of the city of Detroit and provided that section line roads be 120 feet in width and that quarter-section line roads be 86 feet in width. The petitioner filed a plat of a proposed subdivision which was bounded on the north by a quarter-section line road already in existence and on the east by a section line road already in existence. The plat did not propose to dedicate enough additional width to make those existing streets conform to the master plan requirements. The petitioner claimed that the city had no power to make such requirements in that it was compelling the dedication of private property for public use without compensation therefor, and further, that for other plats along those streets the additional widening strips had not been given. The court stated on page 59 of 217 N.W.:

‘There is no merit to this contention. The other plats referred to were approved and recorded before the present general street plan was adopted; so it cannot be said that it was not made applicable alike to all persons.

‘The streets in the city of Detroit, as elsewhere, were originally laid out for the horse and buggy age. They are too narrow for the present traffic conditions. It has become necessary for the general convenience and the public safety to widen them and to prevent others of the same kind from being established. Because of this necessity, there is nothing unreasonable in the demand of the city that the streets designated in the plaintiff's plat should be of such a width as to conform to the general street plan. It has been determined that streets of a certain width are necessary to accommodate the traffic. They are necessary for the public safety, and therefore the right to provide for them is within the police power of the city.’

In answer to the contention made in that case that the city was attempting to exercise its power of eminent domain without paying for it, the court continued:

‘Its argument would have merit, and the authorities cited would have application, if this were a case where the plat had been recorded and the city were undertaking to widen the streets or to establish a building line. But this is not such a case. Here the city is not trying to compel a dedication. It cannot compel the plaintiff to subdivide its property or to dedicate any part of it for streets. It can, however, impose any reasonable condition which must be complied with before the subdivision is accepted for record. In theory at least, the owner of a subdivision voluntarily dedicates sufficient land for streets in return for the advantage and privilege of having his plat recorded. Unless he does so, the law gives him no right to have it recorded.’

In Mansfield & Swett v. Town of West Orange, 1938, 120 N.J.L. 145, 198 A. 225, the proposed subdivision was disapproved for various reasons. In discussing municipal planning generally, the court observed that planning embraces zoning but that zoning does not embrace planning, although zoning does not entirely exclude planning and that the latter term is one of broader significance and is as old as government itself. The court pointed out on page 229, of 198 A.:

‘To particularize, the public health, safety, order and prosperity are dependent upon the proper regulation of municipal life. The free flow of traffic with a minimum of hazard, of necessity depends upon the number, location and width of streets, and their relation to one another, and the location of building lines * * *. And it is essential to adequate planning that there be provision for future community needs reasonably to be anticipated. We are surrounded with the problems of planless growth. The baneful consequences of haphazard development are everywhere apparent. There are evils affecting the health, safety and prosperity of our citizens that are well-nigh insurmountable because of the prohibitive corrective cost. To challenge the power to give proper direction to community growth and development in the particulars mentioned is to deny the vitality of a principle that has brought men together in organized society for their mutual advantage. A sound economy to advance the collective interest in local affairs is the primary aim of municipal government.’ (Our italics.)

In discussing the police power and the fact that private property is subject to reasonable limitations in the use and enjoyment thereof, the court pointed out that ordinarily a course of action may be deemed to be in the public interest when it fairly tends to promote the good of the community at large. But what is public necessity? The court answered the question on page 230 of page 198A.:

‘If it be required to promote the common good in a recognized sphere of activity, it is ‘necessary’ within the intendment of this element of sovereignty so reserved to the states. If it be reasonably demanded by the general welfare, it is embraced within this power. The sweep of the police power is coextensive with the public need as thus defined. * * *

‘And this sovereign power is not limited to measures needful to subserve the public health, morals and safety; it may also be invoked to serve the public convenience and general prosperity and well-being.’

As to the contention that compensation should be paid for the taking of subdivision property, the court, referring to the police power, stated that:

‘Compensation has never been a condition of its exercise, even when attended by inconvenience or pecuniary loss, as each member of a community is presumed to be benefited by that which promotes the general welfare.’

There are ample facts supporting the finding that the widening strip requirement was reasonably imposed. It is apparent that the widening of Sepulveda boulevard is necessitated by the creation and development of the Westchester community and of each individual subdivision which is a part of that community. It appears that the district was unimproved land in 1940 (the tentative map for the first unit fronting on Sepulveda boulevard was filed February 28, 1940), but that approximately 15,000 people lived there at the time of trial and that when fully developed, the community would include approximately 40,000 to 45,000 persons. All of these people, of course, do and will contribute to the increasingly heavy flow of traffic which the two main arteries, Manchester boulevard and Sepulveda boulevard, must bear. Then too, the business district on Sepulveda boulevard, lying immediately south of Manchester boulevard, is intended to draw trade not only from the Westchester district itself, but from the population in the surrounding areas. Accordingly, the Westchester business district contributes and shall continue to contribute an ever-increasing amount of traffic to the load already carried by Sepulveda boulevard

It should be borne in mind that the subdividers have not been required to improve the strip dedicated for widening, but only to dedicate it. The city will have to bear the cost of the improvement either from funds available for such purpose or by means of special assessment.

Condition 2, requiring appellant to dedicate the triangular tip of the tract for street purposes, is authorized by the subdivision map act and is otherwise validly imposed. This was supported by testimony which was very persuasive that the dedication of the tip is absolutely necessary to reduce the traffic hazard.

The court found that the creation and laying out of the subdivision in question will create traffic conditions and hazards requiring the dedication of the tip for the proper control of traffic which will be necessary for and will benefit the lot owners in the subdivision, and that the imposition of said condition is reasonably related to the protection of the public health, safety, etc., of the people of this city.

In the first place, the condition involves the widening of either Sepulveda boulevard or Arizona Street, or both. It also involves the alignment of one of the streets, or both. It is therefore a requirement which comes within the scope of the term ‘design’ as the same is defined in section 11510 of the Business and Professions Code and as more fully discussed above.

The evidence clearly sustains the finding. Mr. Dorsey, the traffic engineer, testified that the elimination of the point was necessary to reduce the traffic hazards at that intersection. He stated that the two fundamentals of traffic engineering involved were the reduction of the points of conflict where the flow of traffic on one street intersects that on the other street, and getting the traffic movements as close to a right angle as possible. He also testified that the dedication of the tip is ‘the most practical and safest way for traffic originating or destined to this area to enter and leave Sepulveda Boulevard.’ He again stated under cross-examination that the fundamental purpose is to minimize the points of contact and make the traffic movement as close to a right angle as possible. It seems clear that the person who will live in or otherwise use the subdivision now in question will gain the benefit of the safer entry into Arizona street and into Sepulveda boulevard. The fact that other persons in the Westchester area will likewise be benefited would not detract from the reasonableness of the condition.

III

Appellant's third contention is devoid of merit. Appellant concedes that the subdivision map act permits the imposition of the requirement, but contends that it is unreasonable to require that the street be 80 feet in width.

He concedes that the finding of the court, ‘that said subdivision map act was not improperly or unreasonably construed or enforced in the imposition of any of the conditions set forth in paragraph III of the first cause of action of said amended petition’ constitutes a finding that this condition was reasonably imposed. That there is ample evidence to support the finding cannot be questioned.

A witness testified that most of the streets in the Westchester area are only 54 or 56 feet wide, whereas they would have been 60 feet if the old standard pattern had been used, and that the Westchester community has narrower streets than are usual.

Only a few of its streets come into the main highways. It stands to reason that where most of the interior streets are comparatively narrow, the few streets which open into the surrounding traffic arteries will carry all or most of the traffic, and accordingly should be wide enough to accommodate the increased burden. Mr. Ayres himself testified that 77th Street is the most northerly street in the Westchester community coming into Sepulveda boulevard from the west and that it draws or will draw traffic from a residential area extending one-half mile north along Sepulveda boulevard, and to a lesser distance north as 77th street gets further west from Sepulveda, and one-quarter of a mile south to 79th street. In other words, it is the only outlet to Sepulveda boulevard for a distance of about three-quarters of a mile from 79th street to the northerly end of Westchester. Seventy-seventh street therefore is a bottleneck, being the only ingress and egress to Sepulveda boulevard for a substantial residential area. The undisputed testimony also shows that the land abutting 77th street on the north in the subdivision now in question is to be used only for drive-in business, and the land immediately to the south is to be occupied by a church. A witness testified that most of those people who enter the business area from Sepulveda boulevard will leave it on 77th street, and that the church immediately to the south of 77th street will subsequently increase the traffic load further, that there will be parking along the street because of the nature of the enterprises abutting it, which will narrow the roadway for moving traffic.

IV

Appellant's fourth contention is immaterial in view of the fact (a) that we hold that respondent was not bound by the provisions of the state planning act of 1929; and (b) that it is entirely immaterial, so far as the present proceeding is concerned, whether in other instances not now before the court respondent properly or improperly enforced the subdivision laws. Our sole concern here is whether or not respondent has acted properly in the present case.

IV

Appellant's fifth contention is meritorious. There in nothing in the subdivision map act authorizing respondent to require a subdivider to retain ownership of a strip of land adjacent to a highway, and restrict it to the planting of trees and shrubbery which will prevent ingress and egress to and from such highway. The most that respondent can say in support of this requirement is that if planting was done on such a strip it would tend to screen out traffic noise and fumes from homes in the vicinity; that it has been required by the Federal Housing Administration and the city thought it to be a good idea and practice. The record is devoid of any evidence that if a planting strip were shown or dedicated it would be planted; respondent claims that it does not have the funds to plant the strip; the lot owners cannot be compelled to plant it; and there is an utter lack of evidence to show that this requirement is in any way related to the public health, safety, morals or general welfare.

Hence respondent improperly required the fourth condition mentioned, supra, to wit, that appellant set aside, adjacent to the 10-foot widening strip, an additional 10 feet to be retained in his ownership but to be restricted to the planting of trees and shrubbery which would prevent ingress and egress to and from Sepulveda boulevard.

Respondent's contention that appellant is estopped to urge the invalidity of the fourth condition is not well taken for the reason that the law is settled that an appellant court will not consider a theory of a case different from that urged in the trial court and which is presented for the first time on appeal. (Title Ins. & Trust Co. v. Graham, 44 Cal.App.2d 660, 662, 112 P.2d 935, and cases therein cited.)

Applying this rule to the facts in the present case the record discloses that the question of estoppel was not pleaded during the trial; there was no finding by the court or any conclusion of law concerning the alleged estopped. From the foregoing it is apparent that the theory of estoppel which appellant urges is being here presented for the first time and therefore will not be considered by this court.

Since each of the other conditions imposed by respondent were valid, it is ordered:

First: That finding (b), paragraph II of the second cause of action be stricken, and that in lieu thereof there be inserted this finding: ‘That with respect to the condition that a planting strip be shown adjoining Sepulveda boulevard, the court finds that it is true that such condition is arbitrary, capricious and invalidly imposed, and that such condition is not authorized by any of the provisions of the subdivision map act of the state of California;’

Second: That (2) of paragraph II of the Conclusions of Law be stricken, and that (3) and (4) be renumbered (2) and (3) respectively;

Third: That (2) in paragraph (a) of the judgment be stricken and that (3) and (4) be renumbered (2) and (3) respectively.

As thus modified the judgment is affirmed.

I concur in the opinion and judgment of Mr. Justice McComb in so far as it affirms the judgment of the trial court but dissent from that portion which directs its modification. The conditions attached to appellant's map are reasonable requirements to be made of the promoter of a new subdivision for sale in parcels. In considering them it will be borne in mind that the decision derived by respondent was its answer to appellant's request for approval of his map of his subdivision in order that it might be recorded among the public deed records as an aid to appellant in the sales of his land in city lot parcels. That respondent was not arbitrary is established (1) by finding (c), quoted in Mr. Justice McCOMB'S opinion and (2) the evidence adopted by the court as the basis for such finding.

A charter city has plenary power to administer municipal affairs without legislative interference. Constitution, Art. XI, secs. 6 and 8. Such has long been the practice of Los Angeles. Department of Water and Power of City of Los Angeles v. Inyo Chemical Company, 16 Cal.2d 744, 753, 108 P.2d 410. The city's charter provisions are paramount to general laws in relation to municipal affairs and unless its power with regard to municipal affairs be limited by the charter, it is unhampered, except by constitutional inhibitions. City of Oakland v. Williams, 15 Cal.2d 542, 549, 103 P.2d 168; West Coast Advertising Company v. City and County of San Francisco, 14 Cal.2d 516, 521, 95 P.2d 138. It follows that if a charter is silent upon a subject dealt with by statute the city is at liberty to enforce such statute in the absence of a charter provision inconsistent with the statute. City of Oakland v. Williams, supra, 15 Cal.2d page 549, 103 P.2d page 171. These doctrines lead to the conclusion that the city may exercise the police power granted by the constitution (Art. XI, sec. 11) the purpose of which power was to make municipalities free from legislative interference in matters of their internal concerns. Butterworth v. Boyd, 12 Cal.2d 140, 147, 82 P.2d 434, 126 A.L.R. 838.

Zoning and planning are municipal affairs. Hurst v. Burlingame, 207 Cal. 134, 142, 277 P. 308; Civic Center Ass'n of Los Angeles v. Railroad Commission, 175 Cal. 441, 445, 166 P. 351. So also are the opening, vacating, widening and improvement of streets. Sunset Telephone & Telegraph Co. v. City of Pasadena, 161 Cal. 265, 282, 118 P. 796; Blake v. City of Eureka, 201 Cal. 643, 657, 258 P. 945. Since the Subdivision Map Act is specifically mentioned in section 95[g] of the Los Angeles Charter which prescribes designated duties for the city planners and the subdivision ordinance refers to the Subdivision Map Act it is inescapable that such ordinance was adopted to enforce the Act. The only charter requirement imposing duties with reference to city planning is section 96 1/2 which requires that the council shall consider any master plan presented by the planning department. Not only are the conditions of the triangular tip, the 80-foot width of 77th street and the ten-foot strip on Sepulveda proper and reasonable but the requirement of the planting strip is also justified by the circumstances and the overall plan for the Westchester community. This strip was designed as stated by appellant ‘to restrict the lots for the use of planting and to prohibit ingress and egress of the adjoining property owners over the strip.’ When planted to shrubs and trees it will protect the residents of the tract from the annoyance of fast and heavy traffic and from the influence of the monoxide fumes of motor cars. The strip is not condemned; nor is appellant's alienation restrained. While the strip could be taken as a part of the general design (Bus. & Prof. Code, sec. 11510) its use is merely restricted to a specified purpose. Hence, the condition is nothing more than a zoning of the area which is a power of a charter city. Miller v. Board of Public Works, 195 Cal. 477, 486, 234 P. 381, 38 A.L.R. 1479. Even appellant testified that ‘a planning commission and the subdivider should be everything possible to develop a city that we would be proud of.’ Also, he discussed with the Planning commission the matter of putting in ‘a divided street with a parkway in the center for planting.’ But he disdains the idea of the city's imposing restrictions upon his own lands, and objects to the condition of the planting strip as a ‘benefit of the city as a whole’ notwithstanding its development will enhance the beauty of the community and increase the value of his own tract. He knew that all the subdividers would lay out planting strips, a practice to which he conformed during the early growth of the Westchester community. Appellant's contention that no plan has been adopted for the care and maintenance of such strips indicates an impatience. No one knows better than he that the perfection of plans for the beautification and improvement of a city or of any subdivision thereof requires time. Especially was this true when the cost of everything was excessive and the public thought was centered upon the winning of a war.

The plan for the development of the Westchester community has been approved by respondent as each subdivision was offered for sale as city lots. Both the tentative and final maps were approved pursuant to sections 11525, 11552 and 11611 of the Business and Professions Code and to the subdivision ordinance, sections 6 and 7. The master plan of traffic arteries, adopted in 1934, provided that Sepulveda should be a major artery. In adopting that plan and in approving the maps and plans for all subdivisions respondent did not delegate its authority to any city department. The planning department does the designing upon which the Planning Commission makes recommendations to respondent. Whether they are adopted by the council rests solely in its discretion. It may receive advice from any department of the city or state or from any citizen but at last its orders are of its own making. This is the procedure followed in the entire history of the development of the district here in question. Therefore there has been no abuse of power or disregard of statutes or ordinances. On the contrary the Planning department before adopting any plans has always consulted with public and private agencies to the end that its judgments might be seasoned with the thoughts and experiences of many.

The judgment should be affirmed in its entirety.

I dissent from those portions of the opinion of Mr. Justice McCOMB and from those portions of the judgment that sustain the judgment of the lower court with reference to (1) the dedication of land for the opening of 77th Street across appellant's subdivision to the width of 80 feet; (2) the dedication of a 10-foot strip for the widening of Sepulveda Boulevard.

[1-11 and part of 12; 14-17] I concur (1) in that portion of the judgment amending the findings and judgment of the lower court with reference to showing on appellant's subdivision map an undedicated planting strip along Sepulveda Boulevard and declaring that respondent was and is without power to require such strip to be left as a condition for the approval of the map; (2) in that portion of the judgment sustaining the trial court in approving the condition with reference to the dedication of the southerly triangular point of appellant's proposed subdivision; (3) in that portion of the opinion holding that respondent cannot urge the defense of estoppel on this appeal.

The Planning Act of 1929 as amended (Stats.1937, ch. 665, p. 1817; 2 Deering's General Laws, 1944 Ed., Act 5211b, p. 1768) provides in section 1 that every city shall adopt and establish a master plan and official plans based thereon, and that ‘Such plans are hereby declared to be established to conserve and promote the public health, safety and general welfare.’ Section 4 declares it to be the function and duty of the planning commission ‘to prepare and adopt a comprehensive, long-term, general plan for the physical development of the city, * * *’ and that ‘Such plan shall be known as the master plan and shall be so prepared that all or portions thereof may be adopted by the legislative body’ as a basis for the development of the city; that the master plan, with the accompanying maps, diagrams and charts, shall show, among other things, ‘the general locations and widths of a comprehensive system of major traffic thoroughfares and other traffic ways and of streets and the recommended treatment thereof.’

Section 6 provides for the adopton by the legislative body of the city of the master plan or of such parts thereof as may practicably be applied to the development of the city for a reasonable period of time next ensuing.

Respondent urges that the city of Los Angeles is not subject to or bound by the State Planning Act but that city planning is a municipal affair and, since sections 6 and 8 of Article XI of the Constitution grant plenary power to charter cities over municipal affairs, respondent may manage and administer such affairs uncontrolled by the general law. Appellant contends that ‘city planning, in so far as the adoption and elements of a master plan is concerned, is not of local concern but statewide.’ A decision upon this phase of the controversy is rendered unnecessary by the fact that the supremacy of the general law has been expressly recognized and adoption by the City Charter of Los Angeles, section 94 of which provides that the Department of City Planning ‘shall have and exercise all the powers and duties which are now or may hereafter be granted to or imposed upon City Planning Commissions or Departments by State law,’ together with such powers as are provided by ordinance, subject to the provisions of Article VIII of the charter. Article VIII includes sections 94 to 99 1/2, both inclusive.

Conformable with section 1 of the State Planning Act above mentioned section 95(e) of the charter provides that the director of planning ‘shall prepare a master plan for the physical development of the City, as such term is defined by State law, in so far as such definition is applicable to the City, * * *.’ Section 95(g) requires the director of planning to make ‘investigations and report on the design and improvement of all proposed subdivisions of land and shall have such powers and perform such duties as are required by the Subdivision Map Act of the State of California.’ Section 96 1/2 provides that upon the adoption of the master plan or any part thereof by the planning commission, it shall be presented to the City Council, which may adopt the same, or any part thereof. The same section requires the planning commission to make such reports and recommendations to the City Council and to other governmental officers or agencies as may be necessary ‘to secure adherence to and systematic execution of the master plan * * *.’ For charter provisions, see Stats.1941, pp. 3487, 3495 et seq.

Since section 94 of the charter grants to the City Planning Commission all the powers and imposes on it all the duties charged upon such commissions by state law, the latter, as well as the charter provisions, must be examined for the purpose of determining the questions raised by this appeal, whether planning be a municipal affair or one of general concern. The powers and duties of the commission are the same in either event. The charter provision does not restrict such powers and duties to any particular statute but embraces all those granted or imposed ‘by State law.’ Being all-inclusive it comprehends the requirements of the State Planning Act, the Subdivision Map Act and all other applicable statutes. Furthermore, there is so little difference between the charter provisions and those of the State Planning Act that the distinguishing or correlation of their respective requirements is unnecessary.

Respondent and its officials have failed to follow the provisions of the general law or those of the city charter in the preparation and adoption of a master plan, and the finding that they have done so and that a master plan exists and has existed during the times material to this action is not sustained by the evidence. Maps and documents were introduced in evidence with reference to (1) a comprehensive zoning plan, designating portions of the city in which buildings of certain kinds may be erected or businesses of certain descriptions may be maintained, which have been amended on numerous occasions; (2) master plans for the civic center, covering a few blocks in the business area in which public buildings are to be erected; (3) parkway plan for highways, ingress to and egress from which is not permitted to abutting owners; (4) shoreline or beach master plan for the development of the beaches; (5) yard zone plan, determining the width of front yards, side yards and set backs; (6) master plan of main and secondary traffic arteries; (7) plans for the new airport. It is contended that the foregoing constitute the master plan required by statute and by the city charter. Some of the so-called plans were approved by ordinance but many of them have nothing more than the approval of the Planning Commission. Taken together, without regard to the manner of their adoption or approval, they have nothing whatsoever to do with the laying out of subdivisions or with the widths or locations of streets to be installed therein.

Respondent states in its brief that ‘the city of Los Angeles is voluntarily creating a master plan, and a number of the elements thereof have been completed,’ but the fact that it is in process of creating such plan does not comply with the statutory requirement that a plan be created so that subdividers may know what they must do in order to have their maps approved. Respondent's statement in another portion of its brief that it has created a master plan is not sustained by a reference to the record indicating that anything has been done by the planning commission or by the director of planning toward the adoption of such plan other than as hereinbefore enumerated, or that such plan has been adopted by the City Council by ordinance or otherwise. Civic center plans, zoning ordinances, yard zones and plans for limited access freeways are no guide for subdividers in laying out streets and have not prevented planning authorities from making and enforcing unreasonable conditions for subdivisions or from changing conditions without uniformity.

It is not contended by appellant that a master plan for the entire city must be created by one map, one resolution, or one ordinance. Obviously in a city covering as large an area as that of Los Angeles the various localities must be separately considered in view of the necessities of the several neighborhoods and the uses which will be made of the property. We are not referred to any plan relating to the widths of streets required to be dedicated in or near the proposed subdivision which is the subject of this action, or to any such plan covering the large acreage adjacent thereto known as the Westchester District.

That there has been no master plan for the city or for any extensive portion thereof, or if one exists it has not been adhered to, is demonstrated by the evidence. In some residential localities streets have been required to be dedicated with various widths of 56, 60, 80 and 100 feet, in many instances without regard for the necessities of the property subdivided or of the surrounding territory. One of respondent's witnesses testified that the usual paved portion of a street is 36 feet when the dedication is 60 feet, and 56 feet and 74 feet for dedications of 80 and 100 feet respectively. It is in evidence that in many instances where streets have been dedicated to the width of 80 and 100 feet only 36 feet have been paved. In such cases the dedicated lands not used for street and sidewalk purposes are occupied by lawns and gardens of the owners of adjoining property. The latter have the benefit of such lands without having paid for them, and the person who was required to dedicate the land has not received and never will receive any compensation therefor.

The widths of streets required to be dedicated have been determined in a haphazard, crazy quilt method according to the whims and temporary ideas of the planning commission or of its director or of some one of its employees. In some instances a street through one subdivision has been required to be dedicated to a width of 100 feet and within a few months a dedication of only 80 feet has been exacted for the extension of the same street through a new adjacent subdivision. In one instance it was demanded that a street be dedicated to a width of 100 feet, that a planting strip ten feet wide be left on each side of the street and that houses be constructed facing on the adjoining street, while the extension of the same street through the contiguous tract was permitted to be only 72 feet wide, no planting strips were required, and the houses were allowed to front on the street, because, said the witness, ‘their plans had been changed.’ No compensation was offered to the first subdivider for the 28 feet dedicated for street purposes but not needed or used, or for the 20 feet left for planting strips. A plan at one time in a subdivision for a through highway was not projected through adjoining land because the planning commission had determined that the through street should be in another location. In several cases the subdivider was compelled to require purchasers of lots to build their houses with their rears toward the street and by reason of a change of the plans dwellings in the adjoining block would be permitted to front on the same street.

While I concur with Mr. Justice McCOMB in holding that the city is without power to require a subdivider to reserve a ‘planting strip’ along a street, it is illuminating to observe the method previously followed by the planning authorities with reference to such strips as aptly illustrating the absence of any plan whatsoever. In some instances a planting strip of 20 feet has been required in one block, five feet in the next, ten in the next, followed by a block in which no planting strip at all was required.

In one instance the dedication of a 100-foot street was demanded because the plan at that time was to extend a through highway westerly to the beaches. The plan was changed and the subdivider of the adjacent property was not required to dedicate an extension. Airport Boulevard was dedicated to a width of 214 feet as a grand entrance to the municipal airport. Later it was determined that the entrance was to be at another location and the dedicated land was lost to its owner. No compensation was offered to him for it.

In 1939 or 1940 the city engineer requested the dedication of 80 feet for Kenebec Street east of Sepulveda Boulevard as an alternate route paralleling Manchester Avenue in order to relieve the heavy traffic that was expected on the latter. Subdividers were required to face their houses away from Kenebec Street and to provide a planting strip along the street. At the time of the trial of this action the street was not improved in any manner—not even graded. The houses on Kenebec Street west of Sepulveda Boulevard were permitted to face the street and no planting strip was demanded.

The evidence shows that plans have been made and dedications have been exacted for wide streets on which the planners expected to compel traffic to flow, but when the streets were opened it has been found that drivers of vehicles have chosen to travel on other streets which they considered better suited to their needs.

When the tentative map involved in this case was presented to the planning commission the dedication of the southerly triangular tip was required for the reason then given that 79th Street was to be extended across it. That street has been since located further south and will not touch appellant's subdivision. Another sufficient reason now exists for the dedication of the triangle which causes my concurrence in the judgment to that extent and this is mentioned only as another event showing the absence of definiteness in planning.

The foregoing are only a few illustrations of the irregular and hodgepodge method of the city officials in dealing with subdividers of residential property. Land required to be dedicated for highway purposes which, by reason of changed plans, is not so used, is for all practical purposes donated to the purchasers of adjoining property and the subdivider is thereby deprived of his property without compensation. This process does not rise even to the level of taking property for public use without compensation. It is in fact the forcible taking of the property from its owner without due process of law and presenting it to another private person without the payment of consideration therefor by the latter.

The record is devoid of evidence that any plans for subdivisions and for streets therein have been adopted or approved by the City Council as required by section 6 of the Planning Act and by section 96 1/2 of the City Charter, to both of which reference has been made.

The finding of the trial court, to the effect that a proper construction of the Subdivision Map Act authorizes the conditions imposed by the planning commission, is a conclusion of law which does not bind this court as would be the case if it were a finding of fact upon conflicting evidence. Therefore this court may and should determine as a matter of law whether any of the conditions are authorized by statute of justified by the facts.

The finding that the changes in the so-called plans were made in accord with the Constitution, statutes and City Charter is a conclusion of law and is not based upon any facts in the record to which the attention of the court has been called. It is apparent from the evidence of several witnesses that general plans for a locality have been changed when a tentative map has been presented for approval, and it does not appear that such changes have been presented to or adopted by the City Council. Mr. Bennett, the planning director, in describing the method of changing plans after they had been adopted by the council, made no pretense that such proposed changes had been submitted to that body. He stated ‘if it were a highway plan approved by the Planning Commission and they felt a change was necessary in it, they would by motion approve such change and instruct the staff to so change the map on which was shown the comprehensive overall plan.’ The adoption of plans is a legislative act to be exercised by ordinance. Planning Act, sec. 6.6; City Charter, secs. 96 1/2, 21. If a plan has not been thus adopted there is no plan. When a plan has been adopted in the manner required by the statute and by the charter only the council may change it. The legislative body is without power to delegate its functions to an executive or administrative board or officer and it has not attempted to do so. The method of adopting and changing plans as described by Mr. Bennett which, according to the evidence, has been followed by him and by the commission for several years is an unauthorized and unlawful assumption of power and has no foundation in law.

I see no justification for the requirement that a planting strip be reserved. Neither statute nor charter requires or authorizes it. It is reserved by order of the city's officials and restricted to the planting of trees and shrubs. Respondent's witnesses testified that the city will not do the planting since it has no funds for that purpose. It is admitted that neither the subdivider nor the owners of adjoining property can be compelled to plant or otherwise improve the strip. Hence the intended means of screening adjacent residences from gases and fumes from the highway will be nonexistent. No zoning ordinance has set aside the land for planting. The purchasers of the abutting lots cannot be expected to purchase the strip in view of the limited purpose for which it is reserved. The title remains in the subdivider but he cannot use it or obtain revenue from it. It will not be assumed that taxes levied on it will be paid, thus resulting in the loss of tax revenue on the entire area covered by planting strips. The possible sale of the strips for nonpayment of taxes or of street improvement assessments poses a question that need not be considered in this case but no doubt at some time will confront the city and its officials. Since a tax title is paramount to other interests in real property would the purchaser at the tax sale obtain a title free of the planting reservation? If so how will his occupancy of the strip affect the intended protection of adjacent dwellers from the noise, fumes and gases of passing automobiles? If it is necessary to prevent entry of traffic into a street from abutting property such result can be readily accomplished by another but lawful method without the loss to the subdivider that is occasioned by the reservation of planting strips.

I have referred to the fact that section 94 of the City Charter requires the planning commission to act in accord with the state law and that this provision includes all state laws having reference to matters covered by Article VIII of the charter. Section 95(g) expressly vests in the director of planning the powers and duties prescribed by the Subdivision Map Act. That statute is found in sections 11500 et seq. of the Business and Professions Code. The provisions applicable to this decision are as follows (emphasis added): Section 11510: “Design' refers to street alignment, grades and widths * * *.' Section 11511: “Improvement' refers to only such street work and utilities, to be installed, * * * by the subdivider on the land dedicated * * * for streets, highways * * * as are necessary for the general use of the lot owners in the subdivision and local neighborhood traffic and drainage needs, as a condition precedent to the approval and acceptance of the final map thereof.' Section 11525: ‘Control of the design and improvement of subdivisions is vested in the governing bodies of cities * * * but, in all matters concerning such design and improvement, any decision by a governing body is subject to review as to its reasonableness by the superior court * * *.’

Since no master plan or other definite plan relating to subdivisions has been adopted by the governing body, the city council, the planning authorities have not complied and cannot comply with the Subdivision Map Act. There is no ‘design’ from which the widths of streets has been or can be determined. The ‘improvement of subdivisions' has been made by the planning commission to include street work which was not to be installed by a subdivider on land dedicated for streets and which he did not agree to install, contrary to section 11511 of the Business and Professions Code. Although one of the conditions imposed on appellant in reference to the subdivision in question in this action is the dedication of a ten-foot strip for widening Sepulveda Boulevard, no street work is contemplated or expected to be installed by him. It is in evidence that the boulevard is a state highway and any street work thereon must necessarily be installed by the State Highway Department. With reference to Sepulveda Boulevard, the city officials testified that they had no idea as to when it would be widened—would not ‘hazard a guess' as to the time.

Respondent contends that all the conditions imposed on appellant are within the police power. Wherever the police power is invoked in defense of an act of a municipality it must be exercised reasonably and not capriciously or arbitrarily. That the planning commission and its director have not exercised their powers in a reasonable manner with reference to the location and widths of streets is demonstrated by the illustrations hereinbefore given.

Respondent attempts to escape the force of the provision in section 1 of the State Planning Act that every city shall adopt a master plan by contending that the word ‘shall’ is not mandatory but is merely directory or permissive. ‘Shall’ is sometimes, by reason of the context or subject matter, construed as ‘may.’ No such construction is possible in the Planning Act for the obvious reason that a duty is imposed on cities and their planning officials to provide a master plan as a necessary guide for property owners so that they may proceed in an orderly manner to subdivide and improve their property. Not only is the word ‘shall’ found in the Planning Act but section 94 of the City Charter provides that the Department of City Planning ‘shall’ exercise the powers and duties imposed on such commissions by state law. Section 95(e) requires that the director of planning ‘shall’ prepare a master plan. Section 95(g) provides that the director ‘shall’ perform the duties required by the Subdivision Map Act. It is inconceivable that the word ‘shall’ would be repeated so many times in the statute and in the charter and that the framers of those instruments would not intend thereby to impose a mandatory duty on the planning officials.

Respondent advances the theory, and it has been adopted in the opinion of Mr. Justice McCOMB, that the recording of a subdivision map is a privilege and that when a subdivider is required to meet the conditions prescribed by the planning commission he is merely giving something in return for the privilege of having his map recorded. When did the sale of property, either in one parcel or in several parcels, become a mere privilege that may be granted or withheld by a planning commission, and if granted may be exercised only on such terms as the commission may prescribe? It is a constitutional right to own and hold property and to dispose of it. The owner may make conveyances of his property at any time in parcels as long as he does not do so in an unlawful manner. He may refrain from recording a map and may convey the smaller parcels by metes and bounds, or he may prepare a map showing his property subdivided into lots. It is a matter of right and not of privilege to record such map upon compliance with reasonable and constitutional conditions.

It is contended by respondent and so declared in Mr. Justice McCOMB'S opinion that the sale of property by reference to lots platted on a map is more convenient to the subdivider than conveyances by metes and bounds, and that therefore he may be compelled to pay the price exacted by the commission, by way of complying with its demands, as a consideration for the ‘privilege’ of recording his map. No reason is advanced to sustain this contention and there is no evidence in the record to fortify it. The fact is that a map is much more for the convenience of public officials than of the subdivider. If the latter should convey a parcel by metes and bounds the preparation and execution of the deed terminates his relation to and interest in the property and any benefit to him is thereby extinguished, but the expense to the public and the inconvenience to public officials has just begun and it never ends. Each year the county assessor must write into his assessment records, both in the tax statement and in the assessment roll, the mete and bound description, and the tax collector must copy the same description in the tax bills. If taxes are not paid it is again copied in the delinquent roll. This procedure must be repeated each year. If the property should be assessed for street improvement purposes the same description must be carried into the assessments and into bonds if any should be issued. The convenience of a map to a subdivider is minimal and ends with his conveyance, while the time and expense caused to the public by reason of the repetition of metes and bounds instead of a simple description by lot number is great and continues indefinitely. The contention that the condition imposed upon appellant by respondent may be enforced in exchange or as a consideration for the approval of the map, without which approval it may not be recorded, has no support in law or in equity.

The point is made the appellant and other subdividers have, as to prior subdivisions, consented to requirements similar to those imposed in this case and that the objection made by appellant in this action came too late. Respondent's contention in reference to estoppel is covered in the opinion of Mr. Justice McCOMB, with that portion of which I concur. Moreover, appellant's answer to this contention is simple, reasonable and understandable. The subdivisions previously made were placed on the market at a time when low-cost housing was imperative for persons who were engaged in the production of war materials. There was a vast acreage to be sold in a locality near the plants where such materials were being produced and convenient and suitable for homes of such persons. Conditions and not permit of a delay until the questions herein dispute could be litigated, hence appellant and his associates submitted to demands that they considered unreasonable, just as any person will yield to a force majeure.

Manifestly situations arise whereby an owner of real property cannot be permitted to subdivide it according to his own ideas. The public welfare and convenience is recognized as a primary factor in the supervision over the location and width of streets. The statutes provide a method for the orderly control of those features. Such control must be exercised in a reasonable manner and all subdivisions in the same locality should receive the same treatment. The record in this case shows such repeated discriminatory and bureaucratic administration of the laws that the orders of the planning authorities cannot be justified. Rules cannot be altered with every change of administration or according to the whims or caprices of the individual into whose hands a proposed subdivision map may chance to fall. The desired and intended result can be obtained only by strict obedience to statutory requirements. The adoption and enforcement of a comprehensive master plan is the only method by which the rights of property owners can be protected from arbitrary orders and conditions that occur to the minds of the planning authorities as each subdivision comes before them for approval.

McCOMB, Justice.