County of San Luis Obispo v. Ranchita Cattle Co.

• Decision Date: 30 March 1971
• Citation: 94 Cal.Rptr. 73,16 Cal.App.3d 383
• Parties: COUNTY OF SAN LUIS OBISPO, a body corporate and politic, Plaintiff and Respondent, v. RANCHITA CATTLE COMPANY, a limited partnership, Defendant and Appellant. Civ. 36262.
• Court: California Court of Appeals Court of Appeals

Page 73

94 Cal.Rptr. 73

16 Cal.App.3d 383

COUNTY OF SAN LUIS OBISPO, a body corporate and politic, Plaintiff and Respondent, v. RANCHITA CATTLE COMPANY, a limited partnership, Defendant and Appellant.

Civ. 36262.

Court of Appeal, Second District, Division 5, California.

March 30, 1971.

As Modified on Denial of Rehearing April 20, 1971.

Hearing Denied May 26, 1971.

Webber-Jackson, Inc., and Robert S. Webber, for defendant and appellant.

Robert N. Tait, Dist. Atty., Robert J. Schum, Deputy Dist. Atty., and Thomas M. Dankert, Special Counsel, for plaintiff and respondent.

FRAMPTON, Associate Justice. ^*

Over the period of approximately four years prior to the trial of the eminent domain action here involved (March 18, 1968), the San Luis Obispo County Flood Control and Water Conservation District (hereafter District) had planned the construction of the Lopez Dam Project.

The District and the County of San Luis Obispo (hereafter County) entered into a joint powers agreement whereby the County, for the mutual benefit of its citizens and those of the District, agreed to condemn the necessary real property for the project.

On December 1, 1965, at the behest of the County, the District obtained from defendant Ranchita Cattle Company a written 'Right of Access' agreement as follows:

'Right of Access

'Pursuant to Act 7205, Section 5, Paragraphs 6, 7 and 8 of the Uncodified Acts of the Water Code of the State of California, permission is hereby granted to the San Luis Obispo County Flood Control and Water Conservation District and/or its authorized representatives to enter upon, and have access to, the land owned by the undersigned and hereinafter described, for the purpose of:

'Conducting surveys and geological investigations.

'Said land is described as follows; Portions of those certain Parcels of land shown on the San Luis Obispo County Assessor's Plats as Parcels 48--071--03, 48--071--06 and 48--071--07.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Commencing on July 29, 1966, some eight months later, the District brought personnel and equipment onto the property and commenced to drill the first of three wells. The first well was dug to a depth of 33 feet; the second well was dug in August 1966 to a depth of 80 feet, and the third well was dug in late August of 1966 to a depth of 80 feet. The wells were cased and were dug for the primary purpose of searching for water, although the information obtained from the logs of the wells would be used for other purposes. Later, at a date not established in the evidence but at a time prior to the commencement of the trial of the eminent domain action (later filed), the District refilled two of the wells and capped them. The third well was still open as of the date of trial (March 18, 1968).

On April 13, 1967, the County filed its action in eminent domain seeking to acquire title to approximately 625 acres of land, title to which was vested in Ranchita. This acreage was part of a parcel of approximately 10,300 acres owned and operated by Ranchita as a ranch. The complaint alleged that the land was being acquired 'for public dam, reservoir, flood control, recreational, and water conservation purposes.'

The three wells in question were all dug on the 625 acre parcel which was later taken in the eminent domain action and were spaced within approximately 100 feet of each other. If a circle were to be drawn around the area in which the three wells were drilled, it would encompass a space of less than two-thirds of an acre.

On September 5, 1967, plaintiff County obtained an order for immediate possession of the parcel upon deposit into court of the sum of $50,000. This order became effective on September 11, 1967.

The cause went to trial on March 18, 1968. On March 27, 1968, the jury returned its verdict finding the fair market value of the parcel to be $124,891.40.

Ranchita moved the trial court to make a finding that it was entitled to receive interest on the award of damages for the taking from the date the District had entered upon the land taken and had commenced digging the three wells (July 29, 1966), and to include such interest in the judgment. The court denied the motion and held that Ranchita was only entitled to interest on the award from September 11, 1967, the effective date of the order for immediate possession. Interest was allowed in the judgment only from September 11, 1967, to the date of payment of the judgment. The appeal is from that portion of the judgment only which specifies the period of time during which Ranchita is entitled to interest on the award.

The trial court found, among other things '* * * that an Order for Possession was signed by the Court on September 5, 1967 which became effective on September 11, 1967. In addition, plaintiff previously entered a small area of the Ranchita property on or around July 29, 1966 near the southeast corner of Parcel A-107 (the parcel taken), for the purpose of drilling three wells. Such entry, however, was pursuant to a right of entry giving plaintiff the right to make surveys and to conduct subsurface geological explorations. No claim has been filed with any governmental entity relative to the earlier entry. Defendants are not entitled to interest for such earlier entry.'

A minute order of the court bearing upon its denial of interest on the award from the date of entry upon the property to conduct surveys and geological investigations reads in pertinent part as follows: 'That defendant is denied interest before order for possession for reasons hereinafter stated.

'Rationale: Defendant gave plaintiff the right to enter and conduct geological investigations. Geological investigations include test borings. The Court so finds; it is not bound to accept defendant's testimony as conclusive.

'The Court implies an agreement to pay for any excessive or unreasonable damage beyond that authorized. A claim would have to be filed therefore (sic). Ghiozzi v. City of South San Francisco, 72 C.A.2nd 472 (164 P.2d 902) (inverse condemnation).

'No tort was committed because of permission. Hence, there was no taking under the Constitution. Were there a taking, it was only a partial taking and a proration of interest would be required to prevent a gift of public funds and a payment for something not taken.

'The three holes each did not exceed one foot in diameter or depth of 90 feet.

'Defendants enjoyed full use of the parcel. No substantial interference was proved. Aistrup.

'C.C.P. Section 1255b contemplates a dispossessed owner. An offset for owner's use is allowed. Offsets are self-executing under the law. The Court finds the two to have been mutually extinguishing were interest allowable. The evidence on this point is somewhat meager and either party may wish to be further heard on that subject to protect the record.'

Contentions on Appeal

The basic issue as set forth in Ranchita's opening brief is the claim that the trial court erred in disallowing interest on the award for the time between the commencement of the digging of the wells by the District and the effective date of the order of immediate possession.

The sub-issues within the basic issue, as set forth in the opening brief, are as follows:

'1. Did the entry and digging of wells on private property constitute a 'taking' within the contemplation of the Constitutional provisions?

'2. Did a right of entry agreement executed by the owner grant the public agency the right to undertake such activity? If so, does such an agreement waive payment of interest?

'3. Was the trial court in error in invoking an automatic offset under § 1255b...