PEOPLE DEPARTMENT OF PUBLIC WORKS v. Yor-Way Markets, a Corporation, and E. W. Kennedy, Appellants.* (1959)

Eminent domain. Defendants Kennedy and Yor-Way Markets appeal. They are lessee and sub-lessee, respectively, of a parcel of land in the City of Azusa, situated on the northwest corner of Azusa Avenue and First Street, having 200 feet of frontage on Azusa and 140 feet on First Street. The east ten feet of the property is being condemned. The property is used as a supermarket with adjoining parking space. The customers' entrance to the building is inside the parking lot on the north side of the building and the automobile entrances are on Azusa.

Azusa runs north and south and First Street east and west. The next street to the north is Second Street, at a distance of approximately 960 feet. To the west the first street parallel with Azusa Avenue is San Gabriel Avenue, some 340 feet away. Traffic moves north and south on both of the last mentioned streets. The condemnation is for the purpose of opening a new (unnamed) state highway extending in a general southeast direction from Second and San Gabriel to First and Azusa and thence due south. The construction is such that the new highway and Azusa at a point some 400 feet north of First would merge except for the fact that they are separated by a divider, 6 inches high, 5 feet wide at the southerly end and widening to 16 feet at its north end. A part of the state's plan is to convert Azusa to a one-way street with travel to the north and San Gabriel to a southbound artery; the new state highway will accommodate southbound traffic only. The layout of streets before and after condemnation is shown by maps received in evidence as exhibits 3 and 4. While a customer of Yor-Way Markets can enter at grade from the parking lot into the new street he must go south to First, then turn east on First and left on Azusa if he would travel the nearest route to the north. In order to reach the market customers coming from points south of First Street and traveling north on Azusa must go north to Second Street, west to the new state highway, and south on it to defendants' parking lot, or, as an alternative, turn west on First Street to an alley at the rear of the property and enter through a narrow delivery entrance. In order to accomplish these results Azusa is narrowed from a 47-foot width, curb to curb, to 32 feet for a considerable distance north of First. And the new artery, width of 40 feet, intervenes between the front of defendants' property and Azusa Avenue; direct access to Azusa is thus cut off.

Counsel for respondent and appellants entered into a stipulation ‘that the fair market value of Parcel 5 [appellants' property] together with all improvements thereon and the severance damage to the remainder by reason of the taking of Parcel 5 and the construction of the improvement in the manner proposed is the total sum of Five Thousand, Eight Hundred and 00/100 Dollars ($5,800.00). This stipulation is made without prejudice to defendant Yor-Way Markets' right to offer evidence concerning purported elements of damage involving loss of business, customers and good will by reason of the construction of the improvement in the manner proposed, and without prejudice to the right of plaintiff or the other defendants to object to such offer.’ This stipulation was accepted by the court, the damages for taking and severance were fixed at $5,800 and the trial proceeded upon the issue of whether defendants were entitled to additional severance damage because of interference with their right of access to their property. In the trial court and upon appeal counsel for appellants stress diversion or circuity of traffic and business losses as the bases of their claim to an additional award. But they also relied in the trial court, as they do here, upon People v. Ricciardi, 23 Cal.2d 390, 144 P.2d 799, and similar cases; same were discussed by opposing counsel and the court, which sustained objections to defendants' proffered evidence upon impairment of access. Though counsel for appellants stressed noncompensable items of damage, they also made the broader claim suggested by the Ricciardi case, supra, and we conclude that that broad question is before us—whether any compensable damage to the right of access is shown by the record.

The right of ingress and egress to and from an owner's property, commonly referred to as the right of access, is recognized as an easement attached to the land. City of San Mateo v. Railroad Comm., 9 Cal.2d 1, 11, 68 P.2d 713; Lane v. San Diego Elec. Ry. Co., 208 Cal. 29, 33, 280 P.2d 109; McCandless v. City of Los Angeles, 214 Cal. 67, 71, 4 P.2d 139; Rose v. State of California, 19 Cal.2d 713, 727–728, 123 P.2d 505; Bacich v. Board of Control, 23 Cal.2d 343, 350, 144 P.2d 818; Beals v. City of Los Angeles, 23 Cal.2d 381, 384, 144 P.2d 839; People v. Ricciardi, supra, 23 Cal.2d 390, 397–398, 144 P.2d 799. It is a right of direct access (People v. Ricciardi, supra, 23 Cal.2d at page 399, 144 P.2d 799). The cul-de-sac cases (Bacich v. Board of Control, supra, 23 Cal.2d at pages 352–353, 144 P.2d 818; Beals v. City of Los Angeles, supra, 23 Cal.2d at page 384, 144 P.2d 839) say that it embraces access to the next intersecting street in both directions. It also ‘includes a certain convenience in the use of his property with respect to the rest of the world, such as the opportunity for a man's customers to come to his place of business without unreasonable hindrance or interruption. It includes not merely the right of the abutting owner to go into and come out of his premises but also the right to have the premises accessible to patrons, clients, and customers.’ McQuillin on Municipal Corporations (2d Ed.), Vol. 4, Ch. 30, § 1429, p. 116. See, also, 64 C.J.S. Municipal Corporations § 1703, pp. 101–102. This grows out of the basic rule that the ‘extent of the easement of access may be said to be that which is reasonably required giving consideration to all the purposes to which the property is adapted.’ Bacich v. Board of Control, supra, 23 Cal.2d at page 352, 144 P.2d at page 824. Any substantial interference with the exercise of this easement by a public agency constitutes a compensable taking. Rose v. State of California, supra, 19 Cal.2d at page 729, 123 P.2d 505; McCandless v. City of Los Angeles, supra, 214 Cal. at page 71, 4 P.2d 139.

The police power, rather than the law of eminent domain, embraces and sanctions, without compensation made, the mere re-routing of traffic whether that be through construction of a divider in the center of the street bounding a given property (Holman v. State of California, 97 Cal.App.2d 237, 244, 217 P.2d 448; People v. Sayig, 101 Cal.App.2d 890, 893, 226 P.2d 702), or requiring that all traffic on the street proceed in one direction only (Beckham v. City of Stockton, 64 Cal.App.2d 487, 502, 149 P.2d 296), or creating other types of diversion or circuity of travel (People v. Ricciardi, supra, 23 Cal.2d at page 396, 144 P.2d 799; People ex rel. Dept. of Public Works v. Russell, 48 Cal.2d 189, 195, 309 P.2d 10; Beckham v. City of Stockton, supra, 64 Cal.App.2d at page 502, 149 P.2d 296; Rose v. State of California, supra, 19 Cal.2d at page 741, 123 P.2d 505; Holman v. State of California, supra, 97 Cal.App.2d at page 244, 217 P.2d 448). Likewise, mere interference with the business of an adjoining owner is not compensable (People v. Ricciardi, supra, 23 Cal.2d at page 396, 144 P.2d 839; County of Los Angeles v. Pan American Dev. Corp., 146 Cal.App.2d 15, 19, 303 P.2d 61; City of Oakland v. Pacific Coast Lumber etc. Co., 171 Cal. 392, 398, 153 P. 705).

The rules just mentioned are not absolutes, however. Concerning interference with the existing flow of travel, Bacich v. Board of Control, supra, says in 23 Cal.2d at page 355, 144 P.2d at page 826: ‘In any event, the phrase ‘circuity of travel’ has varied meanings and is frequently misused by the courts. There is more than merely a diversion of traffic when a cul-de-sac is created. The ability to travel to and from the property to the general system of streets in one direction is lost.' People v. Ricciardi, supra, 23 Cal.2d at page 403, 144 P.2d at page 806. ‘To sustain the plaintiff's position would require a ruling by this court to the effect that although a landowner's easement of access has been substantially impaired, under no circumstances should circuity of travel occasioned thereby enter into a computation of the damages to be awarded. Such a ruling obviously would be beyond the bounds of propriety.’

Where there is a taking an interference with use of the remainder for business purposes may enter necessarily into determination of the severance damage, not as a separate item but as an inescapable element of measurement of impairment of the value of the remainder. This follows from recognition of the right of the condemnee ‘to have the premises accessible to patrons, clients, and customers.’ McQuillin on Municipal Corporations, supra, p. 117. The same author says, in paragraph 1489, at page 245: ‘In fact, the general rule may be said to be that if an encroachment or other improper use of the street by an adjoining owner, an owner across the street, or others, materially interferes with prospective customers as to their ingress or egress from plaintiff's place of business or their view of shop windows, plaintiff is specially injured so as to be entitled to sue.’ In the Oakland case, supra, 171 Cal. 392 at page 398, 153 P. 705, at page 707, the court observed: ‘Indeed, this is but another way of phrasing the real contention of appellant, as quoted above from its brief, that business is property and when the taking by the state or its agencies interferes with, impairs, damages, or destroys a business, compensation may be recovered therefor. We are not to be understood as saying that this should not be the law when we do say that it is not our law.’ It seems apparent that if conduct of a supermarket be the highest and best use of the condemned premises the effect of the taking upon the remaining parcel will be influenced strongly by the fact that it renders that remaining parcel less valuable for business purposes,—not the past experience of the owner is to be considered, but the impact upon the market value of the portion not taken when considered with respect to its highest and best use.

It has been shown above that Azusa Avenue, which bounds the condemned parcel on the east, has been shifted further east some 40 feet, the new state highway now intervenes between the condemnees' property and the street upon which it formerly abutted and direct access to Azusa Avenue has been destroyed. This case is governed by People v. Ricciardi, supra.

That was an action for condemnation of a portion of defendants' property located at the northeast corner of Rosemead and Ramona Boulevards, in Los Angeles County. Rosemead runs north and south and Ramona east and west. Immediately south of Ramona and paralleling it is the Pacific Electric Railway Company's right-of-way. Defendants, before condemnation, had driveways leading into their property at the same grade as the two streets; the property was used as a slaughterhouse and meat market. The state's project contemplated widening of Rosemead to four lanes, two of which would be in an underpass designed to eliminate the grade crossing of the railroad; the other two lanes, one on each side, were to be 30 feet wide and were designated as service roads; Ramona was to become a freeway and a like service road was to be constructed between the freeway and defendants' property. The grade of Rosemead was to be changed in such manner in connection with the underpass as to effectively block defendants' ingress and egress to and from the main highway except by using the service road to Glendon Way, some 525 feet north of Ramona, and then turning left into Rosemead. The map at page 409 of the report indicates that defendants' frontage on Rosemead was not more than half that 525-foot distance, and perhaps less. Discussing the question of whether there was an actionable interference with defendants' easement of access, the court said in 23 Cal.2d at page 399, 144 P.2d at page 804: ‘We recognize that the defendants have no property right in any particular flow of traffic over the highway adjacent to their property, but they do possess the right of direct access to the through traffic highway and an easement of reasonable view of their property from such highway. If traffic normally flowing over that highway were re-routed or if another highway were constructed which resulted in a substantial amount of traffic being diverted from that through highway the value of their property might thereby be diminished, but in such event defendants would have no right to compensation by reason of such re-routing or diversion of traffic. The re-routing or diversion of traffic in such a case would be a mere police power regulation, or the incidental result of a lawful act, and not the taking or damaging of a property right. But here we do not have a mere re-routing or diversion of traffic from the highway; we have, instead, a substantial change in the highway itself in relation to the defendants' property; i.e., a re-routing of the highway in relation to defendants' property rather than a mere re-routing of traffic in relation to the highway. Defendants' private property rights in and to that highway are to be taken and damaged. It is only for such private property rights that compensation has been assessed. The court allowed no damages to be predicated on any diversion of traffic from the highway but it did properly allow damages to be based on diversion of the highway from direct access to defendants' property.’ (Emphasis added.) This interference with the easement of access was recognized as a part of the severance damage (23 Cal.2d at page 401, 144 P.2d 839). It was further observed, 23 Cal.2d at page 405, 144 P.2d at page 807 that ‘[n]o question of the exercise of the police power by the state is involved in this case.’

The case of Blumenstein v. City of Long Beach, 143 Cal.App.2d 264, 299 P.2d 347 (undiscovered or ignored by counsel for each side of this cause), is factually on all fours with this case; a new traffic artery was inserted between plaintiff's property and Anaheim Street upon which it had abutted. The action was inverse condemnation. In an opinion prepared by our late and revered Presiding Justice Moore, this court held that there had been a compensable interference with plaintiff's easement of access, saying with respect to the Ricciardi case, supra, 143 Cal.App.2d at page 268, 299 P.2d at page 351, ‘The rationable of the decision is that there had not been a noncompensable rerouting of traffic away from the highway abutting upon Ricciardi's property; neither was it the construction of a competing highway which siphoned off traffic that would otherwise have proceeded along the abutting highway; but on the contrary, it was a situation in which defendant's property no longer abutted upon the main highway as formerly but rather, following the construction of the underpass and the ‘service roads' was removed from contact with the main highway. He no longer had access to the highway which had formerly lain immediately contiguous to his property. If the doctrine announced in the Ricciardi decision is applied to the facts now before us, it clearly applies, a fortiori.’

While appellants at bar place their accent upon noncompensable items of alleged damage, they also insist upon an impairment of their direct access to Azusa Avenue; the Ricciardi and similar cases were and are relied upon, and the application of that doctrine is fairly presented here. Their claims of impairment by reason of the existence of the divider, diversion of northbound traffic, and consequential business losses are misplaced. But the direct access to Azusa Avenue has been destroyed in this case; the right to same is attached to the property as an easement (Rose v. State of California, supra, 19 Cal.2d 713, 728, 123 P.2d 505); substantial impairment or destruction of same is compensable. The trial judge ruled to the contrary and that was prejudicial error.

Appellants also claim damages for temporary impairment of their access during the period of construction of the new highway. The court refused to hear evidence on the subject and this was error. Respondent's brief says at page 5: ‘It should first be made clear, that it is not plaintiff's position that there can be no compensation in any event from temporary interference during construction. Such is simply and logically not the law.’ The authorities hold that such temporary interference with access, if substantial, is compensable. See, Jacobsen v. Superior Court, 192 Cal. 319, 328–329, 219 P. 986, 29 A.L.R. 1399; Heimann v. City of Los Angeles, 30 Cal.2d 746, 754–758, 185 P.2d 597; Lane v. San Diego Elec. Ry. Co., supra, 208 Cal. 29, 34, 280 P. 109; 29 C.J.S. Eminent Domain § 142, p. 985.

Plaintiff's witness Hashimoto, design engineer in the Division of Highways, testified that the construction contract calls for building of 2 1/4 miles of new highway within 90 days and carries a penalty clause of $300 per day; requires that one lane for traffic in both directions be maintained at all times between First and Second Streets, on the east side of present Azusa Avenue, and that access to abutting property be maintained at all times. He also said that excavation would have to be made in front of the Yor-Way property and a ramp would be constructed over it connecting the parking lot with Azusa. He had no opinion on how long the area in front of the market would be torn up. Defendants offered to show (in addition to certain noncompensable items) that this construction would take from 6 to 12 months, that the contractor probably would put plates over the excavation, narrowing the entrances to the lot, and for practical purposes access along Azusa should be considered closed. Respondent says that this is speculative and outside the plan of proposed improvement; that any such damage would be recoverable in a later action, but not this one, citing People ex rel. Dept. Public Works v. Schultz Co., 123 Cal.App.2d 925, 933–934, 268 P.2d 117. But the Heimann case, supra, indicates the contrary, saying in 123 Cal.App.2d at page 757, 185 P.2d at page 603: “Whether the contractor followed the plans or specifications or not, if plaintiffs' constitutional rights have been adversely affected they are entitled to compensation from the public agency authorizing and supervising the work.' * * * The general offer was to submit proof which might tend to establish some elements of actionable injury. The court should have entertained such of this evidence as tended to show the alleged temporary injury; whether the alleged damage was within the contemplation of the plans and specifications for the public improvement or whether it consisted of a private act of the Works Progress Administration so separated from any purpose of the public improvement as not to constitute the damaging of private property for public use; also whether the elements of injury so shown were actionable.' If perchance there is a custom of contractors to extend their 90-day limit by getting successive extensions and if they do the work in the manner suggested by counsel, appellants should have the opportunity to prove those facts. Anderson v. Hayes, 281 Ky. 484, 136 S.W.2d 558, 562, 128 A.L.R. 774, says: ‘There is only one measure for the damage done to land, where the injury is temporary, and that is the diminution in the value of the use of land during the period of existence of the structure, within proper limitations, or the reasonable cost of removal.’ Incidentally, the amount of the award was deposited in court and a final decree entered on January 28, 1959. It may be that the work has been done or is in progress and that defendants' claim as to the method pursued and time consumed in the work is now susceptible of more definite proof.

The interlocutory judgment and the final order of condemnation are reversed.

ASHBURN, Justice.

FOX, P. J., and HERNDON, J., concur.