City of Los Angeles v. Wolfe

• Decision Date: 16 December 1971
• Citation: 99 Cal.Rptr. 21,6 Cal.3d 326,491 P.2d 813
• Court: California Supreme Court
• Parties: , 491 P.2d 813 CITY OF LOS ANGELES, Plaintiff and Respondent, v. Robert Lee WOLFE et al., Defendants and Appellants. L.A. 29896, 29897. In Bank

Page 21

99 Cal.Rptr. 21

6 Cal.3d 326, 491 P.2d 813

CITY OF LOS ANGELES, Plaintiff and Respondent, v. Robert Lee WOLFE et al., Defendants and Appellants.

L.A. 29896, 29897.

Supreme Court of California,

In Bank.

Dec. 16, 1971.

Chester A. Price, Jr., Encino, for defendants and appellants.

Roger Arnebergh, City Atty., Charles W. Sullivan, James A. Doherty, Asst. City Attys., and Lambert M. Javelera, Deputy City Atty., for plaintiff and respondent.

McCOMB, Justice.

The city commenced this action in 1968 to condemn the fee in five adjacent parcels of real property in the Westwood area of Los Angeles for public off-street parking. Parcel 3 thereof is owned by defendants. They also own another piece of real property (herein 3--A) which the city did not seek to condemn and which is not physically contiguous to parcel 3. However, defendants claimed a right to severance damages to parcel 3--A, pursuant to section 1248 of the Code of Civil Procedure, ¹ by reason of the taking of parcel 3 under the special circumstances of this case.

The pretrial conference order states that the parties demanded a jury trial on the issues of value but agreed to an interim trial by the court on the issues raised as to the validity of the ordinance authorizing the condemnation, whether the taking was for a public purpose, and whether the property being sought by the city was an entire taking or the taking of a parcel from a larger parcel. At the interim hearing held on September 3, 1969, defendants waived the first two issues. Very little evidence was presented on the remaining issue. The court held that there was a single taking, thus denying defendants' claim for severance damages, and set dates for further pretrial conference and jury trial. It granted defendants' motion to file amended answer and cross-complaint in inverse condemnation but held that the issues raised by those pleadings had already been resolved by the court. Minute order of October 23, 1969, shows that the parties agreed to the sum of $131,000 as the fair market value of parcel 3; that defendants reserved their right to a possible appeal on any claim for just compensation other than fair market value; and that defendants' motion to cite 'section 12.21A IVm of the zoning code as further authority and reconsideration of the issues' was denied.

Defendants appealed from the interlocutory order of September 3rd and from the judgment entered December 6th pursuant to the order of October 23, 1969. The order of September 3rd is non-appealable and the purported appeal therefrom is hereby dismissed.

The question of what constitutes a 'parcel' within the meaning of section 1248 of the Code of Civil Procedure is a matter of statutory interpretation. And since this section is part of the statutory scheme to carry out the constitutional mandate that just compensation be given for the taking of private property for public use (art. I, § 14, Cal.Const.; 14th Amend., U.S.Const.; Chicago, Burlington & Rd. v. Chicago (1896) 166 U.S. 226, 233--241, 17 S.Ct. 581, 41 L.Ed. 979), it is also a matter of constitutional import.

Courts have had to adopt working rules in order to do substantial justice in eminent domain proceedings (United States v. Miller (1942) 317 U.S. 369, 375--376, 63 S.Ct. 276, 87 L.Ed. 336). (See 4 Nichols, Consequential Damages, § 14.31, p. 715; 27 Am.Jur., Eminent Domain, § 310, p. 124; 29A C.J.S. Eminent Domain § 140, p. 589; 17 Cal.Jur.2d Rev. Eminent Domain, § 145, p. 818; Anno. 6 A.L.R.2d 1199; 3 Witkin (1960) Summary of California Law, Severance Damages, § 236, p. 2046; Cont.Ed. Bar (1960) California Condemnation Practice, Severance Damages, § C, pp. 66--75.) In order to show that a part taken is part of a larger parcel unity of the property must be shown. 'Three elements must be present to constitute unity of property, namely, Unity of title (San Benito County v. Copper Mtn. Min. Co. (1935) 7 Cal.App.2d 82, 45 P.2d 428; City of Stockton v. Ellingwood (1929) 96 Cal.App. 708, 275 P. 228); Ordinarily contiguity (People v. Ocean Shore Railroad, Inc. (1948) 32 Cal.2d 406, 424, 196 P.2d 570); and Unity of use (City of Menlo Park v. Artino (1957) 151 Cal.App.2d 261, 270, 311 P.2d 135; City of Stockton v. Marengo (1934) 137 Cal.App. 760, 766, 31 P.2d 467.)' (People ex rel. Dept. Public Works v. Dickinson (1964) 230 Cal.App.2d 932, 934, 41 Cal.Rptr. 427, 429.) (Emphasis added.)

The legal issues raised on this appeal are whether physical contiguity is Always necessary and, if not, whether this case comes within one of the exceptions. The first issue is easily answered by the many decisions in which the appellate courts of this state have announced the general rule to be that 'ordinarily' physical contiguity is required and in which they have determined that a particular set of facts did or did not bring particular parcels of land within the exception. These decisions, hereinafter briefly referred to, indicate that the resolution depended upon the facts of the case and upon the sound discretion of the courts in analyzing those facts, which sometimes were susceptible of more than one interpretation.

In 1951 defendants, owners of parcel 3--A, constructed thereon a building containing ground floor stores and three stories for medical offices. This lot fronted on Weyburn Avenue and had parking spaces for eight or nine cars. There was at that time a parking lot directly behind the medical office building, but it was not then, and it is not now, available to defendants' tenants and employees for monthly parking. It is now a validating lot for transient parking. Monthly parking has always been required by defendants' tenants. It is provided to them, without separate charge, under the lease agreements. Defendants have always provided parking, even when they had to go out and find additional parking, to carry out their leases and meet their tenants' needs.

After the building was erected the city enacted a more restrictive zoning ordinance. ² It required that parking be provided within 750 feet of a commercial building measured along streets, walks, alleys or private easements as long as the building was maintained. Where automobile parking space being maintained in connection with a pre-existing building was insufficient to meet the new requirements, the building could continue to operate as a 'non-conforming' building. If parking spaces were not provided the building could not be altered or enlarged. ³ Defendants' building became a 'non-conforming building' for lack of parking spaces.

In order to remedy this situation and to provide parking facilities for building tenants and employees defendants in 1959 purchased parcel 3. The distance between the two parcels is well within the 750 feet required by the ordinance. It is 250 feet if one walks through a public alley, across a public parking lot and over a public street, or 550 feet if one walks only along public streets. Parcel 3 is bounded on the west by a public alley and on the south by Broxton Avenue, which intersects with Weyburn Avenue within one block of each parcel. Defendants have lawful access over public roads between their parcels. They do not own the fee underlying the public roads, the alley, or the private property which separates their parcels. Availability of the public parking lot which extends between Weyburn Avenue and the alley is not referred to by the parties.

Defendants did not consult the city prior to purchasing parcel 3 to determine the exact parking requirements under the ordinance. They did read the ordinance and satisfied themselves that they had to comply. Parcel 3 was the closest property which it was feasible for them to purchase at that time. There are no comparable facilities at the present time for rent or for lease.

The city was unaware of the common use of these parcels until after it condemned parcel 3. The city attorney stated at the hearing below that the city had never investigated the exact requirements for parking spaces for building 3--A,--that defendants were free to use parcel 3 as they wished; that the city would not hold them to the common use or require that the parcels be sold together; and that the city was not seeking any title or interest in parcel 3--A. The city also urged that defendants were not entitled to damages to parcel 3--A merely because it was subject to more restrictive zoning. However, the trial court correctly pointed out that defendants were not seeking damages because of the enactment of the ordinance but were seeking severance damages for taking away the use of parcel 3--A.

The court held that the unitized use of these parcels could be considered in evaluating the damages for the taking of parcel 3, but that there was no taking as to parcel 3--A, the city seeking no interest therein. It did not consider the question whether the unitized use was sufficient to bring this case within an exception to the rule requiring physical contiguity.

Unity of Title: There were several owners, all joined as defendants herein. No issues of fact or law are raised with regard to unity of title.

Contiguity: The general rule in this state is that contiguity is 'ordinarily essential.' (People v. Ocean Shore Railroad, supra, 32 Cal.2d 406, 423, 196 P.2d 570; People By and Through Dept. of Public Works v. Thompson (1954) 43 Cal.2d 13, 18, 271 P.2d 507; People ex rel. Dept. Public Works v. Dickinson, supra, 230 Cal.App.2d 932, 934, 41 Cal.Rptr. 427.)

Oakland v. Pacific Coast Lumber, etc., Co., 171 Cal. 392, 153 P. 705 (1915) has frequently been cited as requiring physical contiguity. ⁴ The factual situation was somewhat comparable to this one. There a condemnee sought severance damages to its planing mill and mill business by reason of the condemnation of a tidelands leasehold upon which it conducted a wharf and lumber yard. The two parcels were some 300 to 400 feet apart, the condemnee did not own the intervening fee, and there was convenient access by...