City of Long Beach v. Aistrup

• Decision Date: 03 October 1958
• Citation: 164 Cal.App.2d 41,330 P.2d 282
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF LONG BEACH, a municipal corporation, Plaintiff, v. Dagmar AISTRUP, a widow, F. Walter Bergmann, a single man, Victor K. Hart, John Gerald Quirk, a single man, County of Los Angeles, and All Persons Unknown Claiming Any Title Or Interest In Or To The Property, Defendants, COURTY OF LOS ANGELES of the State of California, Defendant and Appellant, v. Victor K. HART, F. Walter Bergmann and John Gerald Quirk, Defendants and Respondents. Civ. 22872.

Page 282

330 P.2d 282

164 Cal.App.2d 41

CITY OF LONG BEACH, a municipal corporation, Plaintiff, v. Dagmar AISTRUP, a widow, F. Walter Bergmann, a single man, Victor K. Hart, John Gerald Quirk, a single man, County of Los Angeles, and All Persons Unknown Claiming Any Title Or Interest In Or To The Property, Defendants, COURTY OF LOS ANGELES of the State of California, Defendant and Appellant, v. Victor K. HART, F. Walter Bergmann and John Gerald Quirk, Defendants and Respondents.

Civ. 22872.

District Court of Appeal, Second District, Division 3, California.

Oct. 3, 1958.

Harold W. Kennedy, County Counsel, Los Angeles, and Robert A. Von Esch, Jr., Deputy County Counsel, Whittier, for appellant.

Hodge L. Dolle and Thomas G. Baggot, Los Angeles, for respondents.

VALLEE, Justice.

The city of Long Beach brought this proceeding to condemn several parcels of realty. Defendants Victor K. Hart, F. Walter Bergmann, and John Gerald Quirk each owned in fee one of the parcels sought to be condemned. The County of Los Angeles was named a defendant as it claimed that by reason of liens for taxes for the tax years 1955-56, 1956-57, and 1957-58 it had an interest in various parcels, including those of Hart, Bergmann, and Quirk. An interlocutory judgment was entered on June 5, 1957 and the award was deposited in court. Final order of condemnation was entered July 10, 1957.

The issue here is the amount, if any, the County of Los Angeles is entitled to receive from the award for taxes.

On December 22, 1955, an order was made authorizing plaintiff to take immediate possession and use of the Hart parcel. On February 28, 1956, plaintiff took actual possession of that parcel, demolished all improvements on the property, and immediately thereafter constructed extensive public improvements thereon. Hart paid the first installment of taxes for 1955-56, consisting of half the amount levied for that fiscal year. No taxes were paid for the second half of 1955-56 or for 1956-57 or 1957-58. The trial court apportioned the second installment for 1955-56 to February 28, 1956, the date plaintiff took possession, and denied the county's claim for the tax years 1956-57 and 1957-58. The judgment provides that the county shall receive from the award that part of the second installment of 1955-66 taxes that the period of time from January 1, 1956, to February 28, 1956 (the date of actual possession by plaintiff), bears to the period of time from January 1, 1956, to June 30, 1956, and that no taxes shall be deducted from the award for the fiscal years 1956-57 and 1957-58.

On April 29, 1955, pursuant to the court's order of that date, plaintiff took actual possession of the Bergmann parcel and removed or demolished all improvements on the property and immediately thereafter constructed extensive public improvements thereon. No taxes were paid for the tax years 1955-56, 1956-57, or 1957-58. The trial court denied the claims of the county for taxes for those years for the reason that plaintiff went into possession prior to the beginning of the 1955-56 fiscal year.

On March 9, 1956, pursuant to order therefor, plaintiff took actual possession of the Quirk parcel and immediately removed or demolished all improvements on the property and immediately thereafter constructed extensive public improvements thereon. Quirk paid the first installment of the taxes for 1955-56. The second installment was not paid. No taxes were paid for the tax years 1956-57 or for 1957-58. The trial court apportioned the second installment of taxes for the tax year 1955-56 and denied the county's claim for the tax years 1956-57 and 1957-58. The judgment provides that the county shall receive from the award that part of the second installment of 1955-56 taxes that the period of time from January 1, 1956, to March 9, 1956 (the date of actual possession by plaintiff), bears to the period of time from January 1, 1956, to June 30, 1956, and that no taxes shall be deducted from the award for the fiscal years 1956-57 and 1957-58.

On the first Monday in March 1955, 1956 and 1957 taxes of the County of Los Angeles for the fiscal years 1955-56, 1956-57, and 1957-58, respectively, became a lien on the properties of defendants Hart, Bergmann, and Quirk. By November 1 of 1955, 1956, and 1957 assessment of the properties had been made and the taxes for each fiscal year had been levied.

The county appeals from those parts of the interlocutory judgment which in effect deny its claims for all the unpaid taxes for the fiscal years 1955-56, 1956-57, and 1957-58.

The questions are these:

1. In a proceeding in eminent domain where the condemner is a tax-exempt public corporation, does the taking of possession by the condemner prior to the date of attachment of tax liens render such property tax-exempt?

2. In a prodeeding in eminent domain where the condemner is a tax-exempt public corporation, may real property taxes be apportioned to the date of taking of possession by the condemner when such taxes became a lien on the property prior to the date of taking possession?

The county asserts that in all proceedings in eminent domain by a tax-exempt public corporation it is the date of actual passage of title to the condemner, and not the date of taking of possession, which determines the tax status of the property. Section 1253 of the Code of Civil Procedure provides that the property condemned shall vest in the plaintiff on the filing of a copy of the final order of condemnation in the office of the recorder of the county.

In all cases of taxation of realty a lien attaches annually as of noon on the first Monday in March preceding the fiscal year for which the taxes are levied. Rev. & Tax.Code, §§ 2187, 2192. Between the lien date and the first Monday in July the assessor must assess all taxable property. Rev. & Tax.Code, § 405. Subsequently the taxes are levied against the property. The levy usually occurs in September of each year. The first installment of such taxes is due on November 1 following the levy, and the second installment is due on February 1 of the year following. Rev. & Tax.Code, §§ 2605, 2606.

When a condemner obtains an order for possession of property sought to be condemned peior to judgment and actually takes possession of the property, evicting the owners therefrom, such action constitutes a 'taking' as of the date the condemner goes into actual possession. In People v. Joerger, 12 Cal.App.2d 665, 55 P.2d 1269, quoted from with approval in People By and Through Department of Public Works v. Peninsula Title Guaranty Co., 47 Cal.2d 29, 32, 301 P.2d 1, the condemner went into possession pursuant to an order therefor prior to judgment and performed extensive work upon the premises. The Joergers were the owners at the time the condemner went into possession, but at the time the final order of condemnation was entered the purchaser at a trustees' sale was the owner. The trial court ordered the award which the condemner had paid into court to be paid over to the purchaser at the trustees' sale. Reversing, with directions that the award be paid to the Joergers, the court stated (12 Cal.App.2d at page 670, 55 P.2d at page 1272):

'In the ordinary proceeding the property is not 'taken' until the final decree is entered. Code Civ.Proc. § 1253. It is the divesting of the title of the owner and the vesting of the title in the condemnor which constitutes the 'taking' in such cases. But where, as under our Constitution, provision is made for a 'taking' prior to the divestiture of title, the party who owns the property at the time of such 'taking' is entitled to the compensation, under the universal rule found in Corpus Juris, and to which we have referred.

'It thus appears that where there is no prior physical 'taking' the property is deemed to have been 'taken' when title is divested, as possession follows the title. Where there has been a prior physical 'taking,' the subsequent divestiture of title is merely a confirmation of the original 'taking'. The effect of the constitutional amendment was merely to accelerate the 'taking'. To hold otherwise would, in effect, nullify that provision of the Constitution which provides that 'private property shall not be taken or damaged for public use without just compensation having been first made or paid into court for the owner'. As appellants were the owners of the property when it was so 'taken', they are entitled to the award.'

We are of the opinion that People By and Through Department of Bublic Works v. Peninsula Title Guaranty Co., supra, 47 Cal.2d 29, 301 P.2d 1, is decisive of the first question. In a proceeding in eminent domain the state acquired for highway purposes a parcel of realty in San Mateo which had been owned by the defendants Arthur. The judgment awarded $25,500 to the Arthurs and to the tax collector of San Mateo 'as their interests may appear.' The state paid the full amount into court. Later the court ordered that $612.20 be paid from this fund to the city to satisfy a claimed assessment lien against the property. The proceeding, which culminated in the assessment lien asserted against the Marthurs' property, was commenced by San Mateo in 1952 pursuant to the Municipal Improvement Act of 1913 (Sts. & Hy. Code, § 10000 et seq.) for the purpose of completing a drainage project affecting and benefiting the lands involved. The assessment was a special benefit assessment. On April 20, 1953, an order was made authorizing that state to take immediate possession. On June 21, 1953, the owners were required to vacate, and the state commenced the removal of buildings and the construction of an overpass thereon. On August 19, 1953, San Mateo recorded its special benefit assessment lien against the property. Judgment was entered on December 2, 1953. Holding that the assessment lien became effective after the Arthurs were deemed to have been divested of their rights in the property and that they were entitled to...