People v. Sayig

• Decision Date: 26 January 1951
• Citation: 226 P.2d 702,101 Cal.App.2d 890
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. SAYIG et al. Civ. 14385.

Page 702

226 P.2d 702

101 Cal.App.2d 890

PEOPLE v. SAYIG et al.

Civ. 14385.

District Court of Appeal, First District, Division 1, California.

Jan. 26, 1951.

Hearing Denied March 26, 1951.

Rea, Jacka & Frasse and J. E. Bean, Jr., all of San Jose, for appellants.

Holloway Jones, Jack M. Howard, Joseph F. DeMartini, Roger Anderson and John P. Horgan, all of San Francisco, Robert E. Reed, Sacramento, for respondent.

PETERS, Presiding Justice.

The State brought this proceeding in eminent domain to condemn, for highway purposes, defendants' interests, if any, in a fifteen-foot strip of land fronting defendants' properties. Admittedly, defendants have title to the underlying fee of the strip in question. The complaint, as amended, alleged that all of the property sought to be condemned 'is subject to an easement or prescriptive right of the public for public travel thereover by vehicular and pedestrian traffic.' The trial court found this allegation to be true, and further found that the bare fee title, subject to the public easement, was of no value. The court also found that none of the defendants suffered any damages to the remainder of their properties by the changes made in the highway by the new improvement. The defendants appeal. They admit that they offered no evidence of the value of the underlying fee subject to the easement, and admit that the findings that their underlying titles, if they are subject to the easement, are of no value, are supported. They contend, however, that the findings that there was a public easement for highway purposes over the strip are totally unsupported by any evidence. They further urge that, regardless of the questions involving the fifteen-foot strip, the changes made in the highway have substantially impaired their right of access to their remaining lands, and they claim that they are entitled to compensation for this impairment.

The fifteen-foot strip which was taken for highway purposes extends across the front of the five pieces of commercial property owned by defendants. These properties are located on the El Camino Real in Sunnyvale near the junction of El Camino Real with the Sunnyvale-Saratoga Road. El Camino Real is one of the main highways between the cities of San Francisco and San Jose, and has existed substantially in its present location for many years. It runs generally north and south, but in the area here involved runs substantially east and west. The five pieces of property owned by defendants are located on the north side of the highway, and on each lot the respective owner operates a commercial establishment. Fronting each lot is a fifteen-foot strip, title to which is in the owner of the lot to which the strip is adjacent. The parties, for purposes of convenience at the time of trial, divided this strip into five parcels and designated them as parcels one, two, three, four and five. The lots behind each parcel will be designated as lots one, two, three, four and five. Parcels and lots one, two and three are contiguous and extend between Taaffe Street and Frances Street, two streets that join El Camino Real from the north. Parcels and lots four and five are contiguous and are located across Frances Street to the east of parcels and lots one, two and three. Between the lots and parcels there is a cement curb and gutter.

El Camino Real, certainly since 1910, and probably from a much earlier date, has run past the properties here involved. Originally, the highway was a two-lane paved highway twenty feet in width, and subsequently it became a three-lane paved highway. Adjoining the highway to the north was a shoulder which was oiled and gravelled. The fifteen-foot strip adjoins this shoulder, then (since 1926) comes the curb and gutter, and then defendants' lots. There is evidence that from the center of the highway to the curb line was about fifty feet. The present improvement relocates the highway in certain respects, and in front of defendants' lots makes the highway a divided highway, so that such lots have direct access only to a one-way highway in front of their properties where the traffic is proceeding towards San Francisco. To get to the one-way highway to go to San Jose defendants have to travel various distances from 500 to 1,000 feet to the cross-over. Under the new improvement, the fifteen-foot strip becomes an integral part of the one-way highway on which the traffic is travelling towards San Francisco

Prior to 1925 the lots and parcels of defendants were part of an orchard abutting the highway and its shoulder. There is some evidence that prior to 1925 some automobiles occasionally travelled along the fifteen-foot strip to avoid the heavy traffic on the highway and its adjacent shoulder. There is also substantial evidence, however, that prior to 1925 the strip was covered with fruit trees, and admittedly was covered with weeds. Prior to 1926 there was no physical division between the parcels and lots. In 1925 the orchard was subdivided and the trees removed. The subdivider, in 1926, saw fit to construct a six-inch high cement curb and a gutter between the lots and the strip in question. Later a sidewalk was constructed in front of several of the lots and behind the curb line. Thus, since 1926, there has been a physical barrier between the lots and the parcels constituting the strip here involved. The original deeds to the subdivided area which carried title to the parcel fronting each lot contained a restriction against using the front twenty-five feet of the property for building purposes, but this restriction died in 1936.

Shortly after the property was subdivided the subdivider gravelled the fifteen-foot strip, and later permits were granted to the owners of several of the lots here involved to oil the parcel in front of their lots. After this was done the fifteen-foot strip, physically, was simply a continuation of the surfaced shoulder and indistinguishable from the shoulder.

Gradually, after the orchard was subdivided in 1925, the various lots here involved became improved with various types of commercial buildings. Before buildings were constructed on all of the lots here involved there is some evidence that some substantial amount of traffic travelled up and down the fifteen-foot strip to avoid the heavy travel on the main highway and its adjacent shoulder. As the area developed commercially the strip more and more came to be used for parking purposes, and it was so used until it became part of the new development of the highway. There is substantial evidence that the parking was public parking and was unrestricted.

A brief description of each parcel and lot follows:

Parcel and Lot One:

These are owned by John Sayig. In 1935 a grocery store was constructed on the lot, and since that time the parcel in front of the lot has been used primarily for diagonal parking.

Parcel and Lot Two:

These are owned by Clarence Kay. There was a great deal of evidence introduced as to the use of these properties. Part of this lot was unimproved. On this unimproved portion Kay displayed motor vehicles and farm equipment for sale. The balance of the lot was used by Kay for a garage and service station. The portion of the parcel in front of the unimproved part of the lot was sometimes used by Kay to display his equipment, but there is substantial evidence that several times a state highway official demanded that Kay remove such equipment from the strip, and that Kay always removed the equipment upon demand. The parcel in front of the garage and service station was sometimes used by Kay for the purpose for parking cars while batteries were checked, etc. Kay commenced his business on this lot in 1937. In 1938 at the east end of the parcel there was constructed a Texaco sign which was erected on a concrete abutment or platform about twenty inches high. This abutment was about two feet wide at the highway end and bigger on the lot side. This abutment ran from the buildings on the lot and across part of the parcel in front of the lot. There is evidence that this abutment ran a little more than halfway across parcel two, which means that it ran eight to ten feet across the fifteen-foot strip.

Parcel and Lot Three:

These were purchased by Kay in 1948, about a year before the trial. Since 1931 the lot has been used for restaurant purposes, and parcel three has been used primarily for diagonal parking.

Parcel and Lot Four:

In 1930 or 1931 a fruit stand was built on this lot. Later a lunch stand was added and the building gradually became a restaurant, which it is today. Parcel four is used primarily for parking purposes. These properties are owned by Peter Pangracs.

Parcel and Lot Five:

These are owned by Rufino Yglesias. The building on the lot, constructed in 1928 or 1929, harbors a barber shop, a bus depot, a restaurant and a taxi stand. Busses and taxis parked on parcel five.

The State contends that its evidence supports the finding that a public easement for highway purposes.--i. e., a dedication by the owners and an acceptance by the public-attached long before the properties were fully improved. The State produced substantial evidence that prior to the building of the present improvements on the lots the witnesses could, did, and saw others drive over the fifteen-foot strip. This travel over the strip existed before the orchard was subdivided in 1925, but certainly has existed since the construction of the curb and gutter in 1926, and the gravelling of the area in 1927, or 1928. Since the property has been improved the strip has been used primarily for parking. The evidence on the part of the State supports the inference that such parking was public unrestricted parking, and not limited to customer parking.

In addition to this testimony of use the State produced some other evidence which it claims supports the conclusion that the property owners, or some of them, recognized that the State controlled the strip in question....