People Ex Rel. Department of Public Works v. Russell , 48 Cal. 2d 189 ( 1957 )

SHENK, J.

The plaintiff appeals from those portions of a judgment in condemnation, entered upon a verdict, awarding actual and severance damages for the taking of Parcel 1 as shown by the maps in evidence and arising out of the construction of an improvement in the county road upon which his property abuts. The property is located in Los Angeles County.

As shown by the maps, the block in which the defendant’s property is located fronts on a county road known as Firestone Boulevard and is bounded by Elmcroft and Ringwood Avenues. His property, indicated as Lot 46, does not abut on those streets. A state highway, also known as Firestone Boulevard, runs parallel and contiguous to the county road in an east-west direction. Reconstruction of the state highway was undertaken in order to provide a railway overpass. This resulted in raising the grade of that highway, the taking of a portion of the county road right-of-way for the maintenance of an embankment to support the overpass, the closing of any access to the state highway at Ringwood Avenue, and providing for a new access to that highway at Elmcroft, and it required the relocation of the county road. This proceeding was commenced by the state to obtain an easement for the latter purpose across Parcels 1 and 2 of the defendant’s property. It was proposed to reconstruct the county road so as to provide an identical 12-foot width of unimproved parkway adjoining his property, an identical 28-foot width of paved roadway, complete with curbs and gutters, for two-way vehicular traffic, and on the same grade as theretofore existed. The only difference in the proposed improvement was the elimination of a 12-foot unimproved parkway on the opposite side of the road from the defendant’s property and the consequent diminution of the total right-of-way width of the county road from 52 feet to 40 feet. There was no impairment of access from the defendant’s property via the county road to the next intersecting street in either direction.

The defendant’s property was unimproved at the time of trial. It had been zoned C-l for limited commercial use in 1950 at the time the subdivision of which it was a part had been accepted. At that time it had been contiguous to the state highway. However, the subdivider had been required by the county, as a condition to its acceptance of the subdivision map, to dedicate 52 feet adjoining the state highway for the construction of the county road to be paved and improved with a roadway 28 feet in width, with curbs and gutters, and a 12-foot unimproved parkway and sidewalk area on either side. The subdivider was also required to dedicate 60-foot easements for the construction of Elmeroft Avenue and Ringwood Avenue, to pave 36 feet on Elmeroft and 40 feet on Ringwood for vehicular use, and to pave Ringwood to the state highway right-of-way line. Defendant, who was then an officer in the subdivision company and who participated in the dedication, later acquired the property in question. He owns the underlying fee in the county road.

The evidence at the trial consisted principally of the testimony of two expert witnesses Ross and Little for the defendant and two expert witnesses Elliott and Smith for the plaintiff, and a view by the jury and the court of the premises after the construction of the improvements.

Witness Little testified that the taking of Parcel 1, which constituted only about 5 per cent of the larger parcel owned by the defendant, did not, in his opinion, reduce the value of the highest and best use to which the remainder of the defendant’s property could be put. There was some variance in the opinions of the four witnesses as to the fair market value of this parcel but the parties do not now dispute the amount of the award made by the jury and the judgment, namely, $3,848.64. This leaves for consideration on this appeal the question as to the award of severance damages resulting from the construction of the improvement.

It was the theory of the plaintiff that the proposed improvement did not impair any legally compensable right of the defendant; that all of the rights enjoyed by him in connection with the ownership of his property were appurtenant to the county road and not to the state highway; that there had been no impairment of his rights as an abutter on the county road to air, light, view, or access; that the diminution in total right-of-way width by the elimination of the unimproved parkway across the road did not constitute a substantial impairment of his right of access to and from that road, and that before the question of the damages to which the defendant might be entitled for impairment of access to the county road could be submitted to the jury, the court was required to determine as a matter of law that there had been a substantial impairment. It was the theory of the defendant, at the outset of the trial, that he was entitled to compensation for the loss of access to the state highway at Ringwood Avenue and because of the raising of the grade of that highway. Pending the ruling of the court evidence was offered to show that his remaining property had been depreciated in value by the construction of improvements in the state highway. After deliberation and near to the close of the trial the court ruled that these were not compensable items of damage and instructed the jury not to consider them in reaching its verdict. No claim was asserted as to any loss of impairment of the defendant’s right to air, light or view by the improvement in the county road.

Each of the defendant’s witnesses testified that in their opinion the highest and best use of the remainder of his property had been changed from a retail commercial development to a residential development. Witness Ross estimated the severance damages caused by the reconstruction of the county road at $69,373, using as the basis for this estimate the fact that the road in front of the defendant’s property was too narrow for servicing commercial property and that by the reduction of the total right-of-way width to 40 feet the road no longer had the potential of an additional paved width, and he considered 40 feet too narrow for the use of vehicles of the type used to serve commercial property. Witness Little estimated the severance damages at $68,034, using as the basis for his estimate the erection of the state highway ramp, the closing of the Ringwood Avenue access, and the inadequacy of a 40-foot street to service commercial property. He made no breakdown of these factors in his computation. Two of these were later held by the court to be non-compensable. When he was asked to consider only the diminution in right-of-way width in estimating the severance damages, he did not change the amount of his estimate. Yet when asked if he thought that the closing of Ringwood Avenue was an additional reason to persuade a present buyer that the property was no longer commercial property but residential property, he replied “I don’t think any buyer would buy property for commercial property if Bingwood Avenue was closed off.”

It was the contention of the defendant throughout the trial that the loss sustained by him was not a question of access but of changing the highest and best use of his property by the narrowing of the right-of-way, the original width of which had been established by the local authorities as being necessary for serving this commercially-zoned property and in which original width he owned the underlying fee. The trial court properly treated this as a question of access to the county road. However it refused to determine as a. matter of law that there had been no substantial impairment of this right, leaving this determination to the jury as a question of fact. The jury was instructed that the defendant had a private right in the county road of reasonable access by such modes of conveyance and travel as are appropriate to the highway, and to a road of a width which was adequate to serve his property, considering the uses to which it was adapted and available. If the jury should find in accordance with this definition that the defendant’s right of access had not been substantially impaired, it was instructed to find that the defendant had suffered no compensable damage by reason thereof. One of the jurors asked whether the landowner has the right to say what can be done with that right-of-way for the use of his own property, whether he could have paved those 12 feet on the opposite side of the road, or did that strip of land belong to the county and had to be reserved for curbs or sidewalks. After a colloquy between court and counsel, he was informed that “the area dedicated to the County of Los Angeles for road purposes may be improved and used for general road and street purposes which includes pavement, sidewalk area, curbs, parkway, which ultimate improvement is determined by the County of Los Angeles according to need of the surrounding area.” The jury returned a verdict of $33,499.83 for the severance damages for impairment of the defendant’s right of access in and to this county road.

The plaintiff urges that the trial court should have determined as a matter of law from the facts presented that there had been no substantial impairment of defendant’s right of access to this road; and that the evidence does not disclose any legally compensable injury suffered by the defendant from the county road improvement. The defendant urges that by its judgment on the verdict the court determined that there was substantial impairment as a matter of law, and that substantial evidence supports the judgment.

In an eminent domain proceeding the amount of compensation is to be determined by the jury. (Const., art. I, § 14.) All other issues are to be tried by the court, and if it does not make special findings on those issues they are implicit in the verdict awarding compensation. (People v. Ricciardi, 23 Cal.2d 390, 402 [144 P.2d 799] and cases cited.) The verdict should stand if there is substantial evidence to support the implied finding.

An abutter’s easement of access arises as a matter of law (Rose v. State, 19 Cal.2d 713 [123 P.2d 505]). It is a property right enjoyed by the abutter as an incident of his ownership of property, and is separate and distinct from the right of the general public in and to the street. While certain general rules have been set forth in the various decisions which have considered the nature and scope of this right, each case must be considered upon its own facts. The right of access has been defined as extending to a use of the road for purposes of ingress and egress to his property by such modes of conveyance and travel as are appropriate to the highway and in such manner as is customary or reasonable. (Rose v. State, supra, 19 Cal.2d 713, 728.) It is more extensive than a mere opportunity to go into the street immediately in front of one’s property. (Bacich v. Board of Control, 23 Cal.2d 343 [144 P.2d 818].) However it does not extend beyond access to the next intersection at either end of the street upon which the property abuts. (Beckham v. City of Stockton, 64 Cal.App.2d 487 [149 P.2d 296].) Any inconveniences which may be suffered after such intersection is reached do not impair the easement but are inconveniences suffered by him as a member of the public. Highway changes causing diversion of traffic or circuity of travel beyond an intersecting street are not compensable. (People v. Ricciardi, supra, 23 Cal.2d 390, 401-402) even though the value of non-abutting property may depreciate as a consequence thereof.

In those cases in which substantial impairment has been found as a matter of law from a reduction in width of a paved street or sidewalk area different factual situations were presented. In Rose v. State, supra, 19 Cal.2d 713, the elimination of a grade crossing and the construction of a subway left a 14-foot lane for two-way vehicular traffic and a 3-foot sidewalk in front of industrial property. In Eachus v. City of Los Angeles, 130 Cal. 492 [62 P. 829, 80 Am.St.Rep. 147], the construction of a street improvement left a 10-foot strip for vehicular use in front of the plaintiff’s property. In Lane v. San Diego Elec. Ry. Co., 208 Cal. 29 [280 P. 109], an improvement was constructed so close to the plaintiff’s premises that a vehicle could not be parked in front of it while a streetcar passed by. In McCandless v. City of Los Angeles, 214 Cal. 67 [4 P.2d 139], an improvement was constructed 7 feet from the plaintiff’s property line. These may be readily distinguished from the present case where the parkway adjoining the defendant’s property and the paved street area for vehicular traffic were of exactly the same width and grade and bore the same relationship to the defendant’s property as theretofore. Any inconvenience to the use of this property for commercial purpose because of these widths was no greater as a result of the improvement. Much of the defendant’s argument is devoted to a discussion of results stemming from the improvements in the state highway. His property does not abut thereon and the court properly ruled that these matters are not compensable.

For the purpose of determining severance damages it is immaterial whether the defendant owns the underlying fee in the county road or has only an easement therein by reason of his ownership of abutting property. (Eachus v. Los Angeles etc. Ry. Co., 103 Cal. 614, 618 [37 P. 750, 42 Am.St.Rep. 149].) The entire right-of-way had been dedicated for county road purposes. The determination of the particular road purposes to which the opposite parkway should be put was within the discretion of the county. The defendant could not have required the county to put it to any particular road use nor could he have used that strip for any special purpose of his own inconsistent with the full enjoyment of the right of way by the public. (Gurnsey v. Northern Calif. Power Co., 160 Cal. 699, 705 [117 P. 906, 36 L.R.A.N.S. 185] ; Colegrove Water Co. v. City of Hollywood, 151 Cal. 425, 429-430 [90 P. 1053, 13 L.R.A.N.S. 904] ; Hayes v. Handley, 182 Cal. 273, 282 [187 P. 952] ; Airways Water Co. v. County of Los Angeles, 106 Cal.App.2d 787, 790 [236 P.2d 199]; People v. Henderson, 85 Cal.App.2d 653, 657 [194 P.2d 91].) With changing conditions of travel, a city or a county has the right to adapt and appropriate its highways from time to time to such uses as are within the terms of the dedication and are conducive to the enjoyment by the public of the highway. (Wattson v. Eldridge, 207 Cal. 314 [278 P. 236]; Airways Water Co. v. County of Los Angeles, supra, 106 Cal.App.2d 787, 790.) The mere possibility that the opposite parkway might have been devoted to the use of vehicular traffic, should the county so determine, was too speculative and remote to be the basis of an award of damages. (Cf. City of Los Angeles v. Geiger, 94 Cal.App.2d 180, 192 [210 P.2d 717].)

In the proper exercise of its police power in the regulation of traffic, a state or county may do many things which are not compensable to an abutting property owner, such as constructing a traffic island, placing permanent dividing strips which deprive an abutter of direct access to the opposite side of the highway, painting double white lines on the highway, or designating the entire street as a one-way street. (McDonald v. State, 130 Cal.App.2d 793, 799 [279 P.2d 777] ; People v. Sayig, 101 Cal.App.2d 890 [226 P.2d 702] ; Holman v. State, 97 Cal.App.2d 237 [217 P.2d 448] ; Beckham, v. City of Stockton, 64 Cal.App.2d 487 [149 P.2d 296].) Amici curiae urge that the use of the parkway as a traffic separation strip between the state highway and the county road is proper in the control of traffic, and as such presents no valid claim for damages. Under the factual situation here presented this contention is sustained.

No substantial impairment of the defendant’s right of access to the county road is disclosed by the evidence and the court should have instructed the jury to that effect. Any finding of the court to the contrary implied from the fact that the question of severance damages was submitted to the jury is not supported by the evidence.

In view of what has been said other contentions raised on appeal need not be discussed.

The judgment awarding damages for the taking of Parcel 1 is affirmed. The judgment is modified by striking therefrom the award for severance damages for the taking of Parcel 1. As so modified the judgment is affirmed; the defendant to recover costs on appeal.

Gibson, C. J., Traynor, J., and Spence, J., concurred.

SCHAUER, J.

In my view the opinion prepared for the District Court of Appeal by Justice Pourt and concurred in by Presiding Justice White and Justice Doran (reported in (Cal.App.) 299 P.2d 920) adequately discusses and correctly resolves the questions presented on this appeal. For the reasons therein stated I would affirm the judgment of the trial court.

McComb, J., concurred.