City of Gilroy v. Filice

• Decision Date: 16 October 1963
• Citation: 34 Cal.Rptr. 368,221 Cal.App.2d 259
• Parties: CITY OF GILROY, a Municipal Corporation, Plaintiff and Appellant, v. Angelina FILICE, Defendant and Respondent. Civ. 21048.
• Court: California Court of Appeals Court of Appeals

Page 368

34 Cal.Rptr. 368

221 Cal.App.2d 259

CITY OF GILROY, a Municipal Corporation, Plaintiff and Appellant, v. Angelina FILICE, Defendant and Respondent.

Civ. 21048.

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

Oct. 16, 1963.

As Corrected on Denial of Rehearing Nov. 8, 1963.

Hearing Denied Dec. 11, 1963.

Sydney S. Johnson, Gilroy, Franklin A. Dill, San Francisco, for appellant.

Boccardo, Blum, Lull, Niland, Teerlink & Bell, by John W. McDonald, San Jose, for respondent.

SULLIVAN, Justice.

Plaintiff, City of Gilroy, appeals from a judgment in defendant's favor in the sum of $1,155, entered after a nonjury trial, in an action in eminent domain brought to condemn an easement and right-of-way for the construction, maintenance, repair and replacement of an underground sanitary sewer.

Defendant's entire property is a 27-acre prune orchard operated by the defendant Angelina Filice and her two sons. The easement sought to be acquired by plaintiff runs along the northerly boundary of the property and consists of a strip 15 feet wide by 770 feet long, containing approximately .265 acres. At the commencement of the instant proceedings, the above strip of land included in the proposed sewer easement was already subject to a road easement in favor of the Santa Clara County Flood Control and Water Conservation District for ingress and egress for the construction, operation and maintenance of a storm drainage facility on contiguous property. The above flood control district consented in writing to plaintiff's use of the surface of said strip of land for the purpose of laying and maintaining plaintiff's sewer pipeline. Plaintiff, on its part, did not seek by its proceedings in eminent domain to condemn any interest or right of the flood control district in the strip of land here involved.

The entire sewer line is approximately 15,000 feet long, running from the City of Gilroy through various properties, including that of the defendant, to a terminus outside the city limits. The 770-foot section through defendant's land was already constructed and in place at the time of trial. Generally speaking, it runs down the middle of the flood control district's road easement. It is laid 9 or 10 feet below the surface of the ground and has three manholes along this part of the line which the parties stipulated would be lowered by plaintiff so as to be flush with or even below the surface of the ground. It is to be noted then that defendant's orchard stopped at the inside boundary of the strip of land constituting the road easement. The parties agree that there could be no building or cultivation on the easement itself, although this area was available to defendant for turning any farming equipment used in the orchard.

Ernest Filice, defendant's son, was the sole witness called by the defendant. He was not qualified as an expert appraiser of real property and, technically, was not a co-owner of the property in controversy. Nevertheless, the record discloses that he gave testimony as to the value of the easement in much the same way as an owner would. This appears to have been offered because of his intimate knowledge of the Filice ranch over many years and of his having been engaged in operating it along with his mother and brother. At any rate, his testimony was received without any objection on plaintiff's part that the witness was not qualified and that therefore his opinion was not competent evidence. Indeed plaintiff has raised no direct objection before us on this point. Nor could plaintiff do so, having failed to object in the court below. (3 Cal.Jur.2d 634-636.) We therefore propose to consider Mr. Filice's opinion evidence as if it were given by an owner of the property.

This witness, after briefly recounting his familiarity with the orchard and with the sewer line, which he had seen constructed, testified as follows on direct examination: 'Q. * * * Mr. Filice, do you have an opinion of the fair market value of the property which is being taken in this proceeding, that is, the sewer easement being taken by the City of Gilroy, as of June 21, 1961? A. Yes, sir, I have. Q. And what is your opinion of the fair market value of that? A. Well, we feel it is--it is worth at least $2250 or $3 a foot for the easement.'

He was then asked to state his reasons for his opinion on the value of the easement and testified: 'Well, it has many. I'd say first, any time you give an easement on any property, why, from then on it is a mark against your--the deed, or if it goes for any sale, the easement is looked down on. It creates people traversing the property, in and out. There is always people using the property, creating dust or damaging crops. And the easement will be from now on, for eternity. We can't back out; once you give an easement, it is forever. And there will always be people going over this easement, which borders the orchard, and there will be prunes on the ground, and I know that prunes will be stepped on, damaged, and there will be dust hazards, damaging the prune blossoms. We can't be there at all times to see that the people don't fly through the property and go at a reasonable rate of speed. Well, it is--it is a nuisance from now on. There will be garbage dumped there, because we have no right to tell people not to go on that easement. It is--oh, I probably can't think of them all, but there will be many reasons why--why we don't feel that it should be there.'

The parties in their briefs have proposed different summaries of the witness' reasons which are obviously somewhat repetitious and overlapping. We feel that they may be fairly reduced to the following: (1) The easement is a mark against the property, thereby affecting its sale; (2) the construction and maintenance of the sewer line creates traffic; (3) people using the easement will create dust damaging the prune blossoms; (4) people using the easement will damage the crops as for example by stepping on the prunes lying on the easement; (5) the easement is perpetual; and (6) there will be garbage dumped there.

Upon the conclusion by the witness of the foregoing statement of his reasons, plaintiff's counsel moved to strike 'portions of that answer of the witness on the grounds that it is incompetent, irrelevant and immaterial, not proper grounds or bases for determining value in a condemnation suit, and are highly speculative.' Plaintiff urged 'that the whole testimony on the reasons here should be striken, and if the Court feels that there might be some portion of that, that is proper then, of course, that would be left in, * * *' After argument on the motion the court indicated that it would not strike all of the witness' answer but would strike those portions 'about creating dust * * * and any other nuisance like dumping garbage on the property, that cannot be considered in this action. That is something that will have to be taken up at a later time.' There were then received in evidence certain photographs of the area taken by the witness which showed that defendant's orchard bordered the easement. By reference to these exhibits, the witness explained that the prunes from the trees close to the easement dropped into the roadway area and that any trucks traversing the right-of-way in connection with the construction or maintenance of the sewer line would be likely to run over the prunes which were on the ground.

On cross-examination, Filice testified that he could not state what portion of his $2,250 figure on the value of the easement he had assigned to prune damage or how much of it, in dollars and cents, he had allocated to any of the reasons given by him for his opinion on value. ¹ At the conclusion of the recross-examination, plaintiff's counsel renewed his motion 'to strike the entire testimony of the witness as to value, on the ground he has been unable to tell us how much of that $2250 he attributes to factors that the Court has allowed in as being competent, and how much he has attributed to speculative and conjectural factors, and as a result his opinion of value is so permeated by this speculation, conjecture and incompetent factors, that the whole thing should go out.' Excepting as to those portions of the valuation evidence which the court had previously indicated during the direct examination it would strike, the court denied the motion. ² Defendant then rested. Plaintiff thereupon moved that judgment be entered awarding nominal damages. Such motion was denied.

Plaintiff presented its valuation evidence through Mr. Rufner, an expert appraiser. Rufner testified that since the property was already encumbered by a road easement in favor of the flood control district, no loss in value resulted because of the sewer line; that the 15-foot strip of land was practically valueless when the roadway easement was placed on it; that there was no impairment in the use of such strip of land; that the balance of the ownership, that is the orchard as a whole, would be more valuable by placing the sewer in the 15-foot strip in the event that the Filice property, which was close to city limits, was subdivided for residential purposes; and that the damages resulting from the taking of the easement were only nominal for which customarily the sum of $1.00 was assigned.

It is to be noted that prior to trial defendant waived all claims to severance damages. It is also to be noted that no view of the property was taken by the trial judge. The trial court found, so far as is here pertinent, that the value of the easement and right-of-way condemned in the instant proceedings was $1,155 and rendered judgment accordingly. In announcing judgment at the close of the trial, the court observed that the defendant was not entitled to the sum of $2,250 (the amount testified to by Filice) but stated that the 770-foot easement was 'worth a $1.50 a foot.'

Preliminarily we feel it is necessary to make certain observations concerning the...