Daly City v. Smith
| Decision Date | 28 April 1952 |
| Citation | 243 P.2d 46,110 Cal.App.2d 524 |
| Court | California Court of Appeals Court of Appeals |
| Parties | DALY CITY v. SMITH et al. Civ. 14915. |
Gardiner Johnson, Roy D. Reese, San Francisco, J. W. Coleberd, Richard P. Lyons, South San Francisco, for appellants.
Frank B. Blum, Roger Anderson, San Francisco, for respondent.
H. H. and Annie D. Smith own 5.48 acres of land partially fronting on Mission Street and partially fronting on Hillside Boulevard in Daly City, San Mateo County. The city brought an action to condemn a portion of this area for street purposes. The proposed street will cut the Smiths' property in two. The Smiths, in their answer, claimed $47,040 for the parcel condemned, and $147,560 as severance damage. The trial court, on sharply conflicting evidence, fixed the value of the land condemned at $4,465, and found no severance damage. Judgment was entered accordingly. The Smiths appeal, contending that an opinion rendered by the trial judge demonstrates, to a certainty, that he erroneously and prejudicially rejected and refused to consider all of the testimony presented by them, and further, that the trial court abused its discretion in failing to appoint its own expert witnesses.
The parcel in question is an irregularly shaped piece of land with a small frontage on Mission Street and a larger frontage on Hillside Boulevard. The portion of the land fronting on Mission Street is zoned for commercial purposes. The balance of the land is not so zoned. The condemned portion runs from Hillside Boulevard, on an angle to Mission Street, but it leaves the Mission Street property with lots deep enough to be used for commercial purposes. The area slopes up sharply from Mission Street and Hillside Boulevard. In 1944 the Smiths purchased 8 1/2 acres, including the 5.48 acres still owned by them, for $7,500. Since 1944 they have done 'considerable' grading on the property, with the end in view of constructing a motel on the premises. Apparently the Smiths had applied for a permit to construct such a motel prior to the inception of this condemnation proceeding. The Smiths now operate a motel about a half mile from the property.
The only buildings now on the 5.48 acres are a temporary building formerly used by the Catholic Church as a school, and a small temporary structure on skids, usable as a tool house. There are no buildings of any kind on the condemned property.
The condemned portion totals .72 of an acre or a total of 31,579 square feet. The 5.48 acres contain 238,700 square feet.
H. H. Smith and two experts testified on behalf of appellants. All agreed that the land was ideally located for a motel, and that such use was the highest and best use to which the land could be put. H. H. Smith admitted that he had worked out a detailed plan for the development of the property, and, in fact, had prepared a model of the proposed motel as it would appear after the requisite grading had been done. This model, although referred to, was not introduced into evidence, and appellants ultimately withdrew their offer to introduce it. Smith testified that his estimates of value, both for the condemned portion and for depreciation in value of the remainder of the property, were not based upon any single detailed plan, because he had not finally decided upon a plan. He had previously testified, however, that his opinion of the value of the land taken was based on a plan he had 'in mind,' and that his estimate of severance damage was also based on the fact that by reason of the condemnation proceeding he was prevented from carrying out this plan.
Smitten, called as an expert by appellants, testified that he based his estimates 'to a great extent' on the very plan proposed by Smith, because, in his opinion, that plan constituted the highest and best use to which the property could be put. However, later in his testimony he definitely indicated that his estimates were not based on any specific plan, but on the use of the property for a motel.
Love, the last expert produced by appellants, thought that the property could best be used as a motel, but testified that his estimates of value were not based on any single plan.
There were motions to strike the testimony of Smith and Smitten (and also that of Love fof a different reason) on the ground that their estimates of value were based on the premise that the appellants had been prevented from carrying out a specific plan, but the court, recognizing the more general testimony given by both witnesses, denied the motions. The motion as to Love was also denied.
The evidence of these three witnesses can be summarized as follows:
Smith, H. H
Highest and best use .... modern motel
Value of portion taken ... $ 47,040.00
Severance damage .......... 159,234.00
Benefits ......................... .00
Smitten, Kenneth
Highest and best use .... modern motel
Value of portion taken ... $ 39,827.00
Severance damage .......... 116,621.00
Benefits ......................... .00
Love, Harry J
Highest and best use .... modern motel
Value of portion taken ... $ 40,768.00
Severance damage .......... 162,032.00
Benefits ......................... .00
The experts for respondent, four in number, were much more conservative in their estimates. They were all of the opinion that there was no severance damage, and that the remaining property would be substantially benefited by the improvement. All of these witnesses gave consideration to the use of the property as a motel in fixing their estimates. The testimony of these four witnesses can be summarized as follows:
Phillips, Joseph J
Highest and best use ...... commercial and residential
Value of portion taken .................... $ 3,330.00
Severance damage ................................. .00
Benefits .................................... 9,232.00
Castle, Linval H.
Highest and best use ...... commercial and residential
Value of portion taken .................... $ 4,465.00
Severance damage ................................. .00
Benefits ................................... 32,710.00
Hollebaugh, Clifford W.
Highest and best use .... first and second residential
Value of portion taken .................... $ 3,000.00
Severance damage ................................. .00
Benefits .................................... 1,610.00
Smith, Norwood B.
Highest and best use ...... commercial and residential
Value of portion taken .................... $ 3,086.50
Severance damage ................................. .00
Benefits ................................... 29,300.00
By stipulation it was agreed that the trial judge could visit the property, and apparently he did so on two occasions.
Based on this evidence, the trial court found in accordance with the testimony of respondent's experts that there was no severance damage, and fixed the value of the condemned parcel at $4,465, the highest figure testified to by any of respondent's experts.
It is apparent that, so far as the sufficiency of the evidence is concerned, the case presents nothing more than a conflict in the evidence. It is equally apparent that the findings of the trial court are amply supported by substantial evidence. Appellants concede that if only the transcript, the findings and judgment were before us, they would have no substantial question of law to present on this appeal. But, they argue, the findings are subject to attack because the trial judge filed an opinion in which he disclosed, so it is argued, that he completely disregarded all of their expert testimony just as if he had stricken it from the record. This, they contend, was prejudicial error.
Before considering that opinion something should be said about the proper function such an opinion plays on an appeal. Since the adoption of Rule 5(a) of the Rules on Appeal in 1943, there can be no doubt that such opinion properly may be incorporated in the record on appeal. The rule so provides. Such opinions are welcomed by the appellate courts. But their function is limited. They may be used to aid the appellate court in ascertaining the process by which the judgment has been reached. Stone v. L. A. County Flood Control Dist., 81 Cal.App.2d 902, 185 P.2d 396. In that case it was contended that the opinion, written on the granting of a motion for a new trial, contained inconsistent statements and demonstrated that the trial judge had inaccurately analyzed the evidence and incorrectly applied the law. The court stated, 81 Cal.App.2d at page 907, 185 P.2d 396, at page 399:
The opinion cannot be used as or substituted for the findings, nor can it be used to modify or impeach them. Strudthoff v. Yates, 28 Cal.2d 602, 170 P.2d 873. In that case the court stated, 28 Cal.2d at page 615, 170 P.2d 873 at page 881: 'The long established rule that the opinion of the trial judge cannot be substituted...
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