Los Angeles County v. Anthony

• Decision Date: 14 January 1964
• Citation: 36 Cal.Rptr. 308,224 Cal.App.2d 103
• Parties: COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. Steve E. ANTHONY, Defendant and Appellant. Civ. 27508.
• Court: California Court of Appeals Court of Appeals

Page 308

36 Cal.Rptr. 308

224 Cal.App.2d 103

COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. Steve E. ANTHONY, Defendant and Appellant.

Civ. 27508.

District Court of Appeal, Second District, Division 4, California.

Jan. 14, 1964.

Hearing Denied Feb. 26, 1964.

Certiorari Denied March 30, 1964.

Sec. 85 S.Ct. 1125.

Paul Hill, Hollywood, for defendant and appellant.

Harold W. Kennedy, County Counsel, and Thomas W. Stoever, Deputy County Counsel, for plaintiff and respondent.

KINGSLEY, Justice.

This is an appeal by Steve E. Anthony from a judgment in a condemnation action awarding him $11,750 for his one-half interest in property condemned for the erection of the Hollywood Motion Picture and Television Museum.

On January 9, 1962, the Board of Supervisors of Los Angeles County adopted a resolution determining that public necessity required the acquisition of defendant's property, among other parcels, as the site for the Hollywood Motion Picture and Television Museum. The county then invoked condemnation proceedings against appellant and others to condemn fee simple title in such property.

We are concerned on this appeal only with the proceedings relating to the acquisition of appellant's interest in one parcel.

The chief point raised by appellant is that he was improperly prevented from showing that his property was to be taken for other than a public use. In his answer to the complaint, he alleged:

'That the purpose for which the said land is to be taken by eminent domain is not for a public use, but contrary is a private purpose to cause ownership of land to be taken from private ownership of land to be taken from private owners [sic] and turned over to other private persons for their profits, and that any public benefit to accrue from the said Museum is merely incidental thereto.'

At the trial, appellant made the following offer of proof: ¹

'* * * They [the Hollywood Museum Association] have entered into agreements with the County of Los Angeles whereby they are having a separate independent leasing corporation, leasing out prospective space in this so-called museum.

'They are also engaging building contractors for the purpose of erecting this building upon this County ground, and it is my intent and purpose to prove that the Hollywood Museum is merely a front of some kind under the guise of eminent domain and under the guise of a public body to put to a private enterprise to be used for the next 30 years, and this separate income is to go into these various corporations that are going to build this building, run this nuseum, run the restaurant, and run other concessions within the building for a profit which the County does not participate in.'

The trial court refused to permit testimony of the issue of public use, ruling that the existence of public use was shows as a matter of law. The trial to the jury was only on the issue of damages. Appellant, relying on People v. Nahabedian (1959) 171 Cal.App.2d 302, 340 P.2d 1053, urges this action as error.

It is, of course, too well settled to require citation that property cannot be taken by condemnation unless such taking is for a public use. Consequently, we are faced with two questions: (1) is a motion picture and television nuseum a 'public use'; and (2) did appellant's pleading and offer of proof adequately raise an issue as to the existence of such a use in this case.

Section 25351.3 of the Government Code, as it read at the time this condemnation proceeding was instituted, in part provided:

'In addition to its other powers and duties the board may:

'(a) Acquire land for and construct, lease, sublease, build, furnish, refurnish or repair buildings for * * * motion picture and television museums, and related facilities as places of public assembly for the use, benefit and enjoyment of the public, * * *.'

As a general rule, the legislative department is the source of power to determine what shall be held to be a public use; except in extreme cases, its action on the question is not open to review by the courts. (Santa Ana v. Harlin (1893) 99 Cal. 538, 542, 34 P. 224; Consolidated Channel Co. v. Central Pac. R. Co. (1876), 51 Cal. 269; 28 S.C.L.R. 369, 380-381.) In this case the legislative determination that a motion picture and television museum is for public uses and purposes, not being unreasonable, is binding and conclusive on this court.

However, while a legislative determination as to what is a public use, if not unreasonable, is binding upon the courts, such a determination does not preclude a person whose land is being condemned form showing at trial, that as a matter of fact, the actual use of the land will be subserved for private rather than public purposes. (County of San Mateo v. Cuburn (1900) 130 Cal. 631, 63 P. 78, 621; Stratford Irr. Dist. v. Empire Water Co. (1941) 44 Cal.App.2d 61, 111 P.2d 957.)

The issue before us is whether the leasing of this property to private individuals to run the museum, hopefully at a profit, constitutes a taking for private rather than public use?

This contention has been answered by Redevelopment Agency of City and County of San Francisco v. Hayes (1954) 122 Cal.App.2d 777, at pp. 803-804, 266 P.2d 105, at 122, where the court stated:

'* * * there have been two different interpretations of 'public use' in this country, one the broader meaning of 'public utility or advantage', the other narrower one of 'use, or right of use, by the public,' * * *. In California our cour...