Harden v. Superior Court In and For Alameda County

• Court: United States State Supreme Court (California)
• Citation: 284 P.2d 9,44 Cal.2d 630
• Decision Date: 27 May 1955
• Parties: William R. HARDEN, Pearl B. Harden, his wife, Chester N. Harden and Virginia Hart Harden, his wife, Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR THE COUNTY OF ALAMEDA, Respondent. City of Hayward, Real Party in Interest. S. F. 19244.

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284 P.2d 9 44 Cal.2d 630 William R. HARDEN, Pearl B. Harden, his wife, Chester N. Harden and Virginia Hart Harden, his wife, Petitioners,
v.
SUPERIOR COURT of the State of California, IN AND FOR THE COUNTY OF ALAMEDA, Respondent.
City of Hayward, Real Party in Interest. S. F. 19244. Supreme Court of California, In Bank. May 27, 1955.

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[44 Cal.2d 632] Popper & Burnstein and Robert C. Burnstein, Oakland, for petitioners.

J. F. Coakley, Dist. Atty., R. Robert Hunter, Chief Asst. Dist. Atty., and Richard H. Klippert, Deputy Dist. Atty., Oakland, for respondent.

John W. Scanlon, Hayward, City Attorney, Breed, Robinson & Stewart and Bestor Robinson, Special Counsel, Oakland, for Real Party in Interest.

CARTER, Justice.

Petitioners, William R. Harden and Pearl B. Harden, his wife, Chester N. Harden and Virginia Hart Harden, his wife, seek a writ of prohibition to restrain further proceedings in an eminent domain action brought against them and other property owners by the city of Hayward.

Petitioners own certain land in Alameda County, lying adjacent to, but outside the corporate boundaries of, the city of Hayward. On June 28, 1954, petitioners obtained a building permit from the County of Alameda which authorized [44 Cal.2d 633] them to erect a department store building upon the land owned by them. Immediately after the building permit had issued, petitioners contracted with licensed contractors for the erection of their building at a cost exceeding $100,000. Construction was from 25 to 30 per cent completed when the City Council of Hayward, a municipal corporation of the sixth class, on October 5, 1954, passed a resolution authorizing the city attorney to proceed by eminent domain to acquire the property of petitioners together with that belonging to others for the purpose of establishing an off-street parking area. Upon the passage of this

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resolution, the city notified petitioners to desist from further construction of the building and petitioners thereupon ceased construction. When over two weeks elapsed without the filing of an action in eminent domain, petitioners again began construction of the building. The city then filed on October 26, 1954, its complaint in eminent domain to which petitioners demurred. The demurrer was overruled on November 22, 1954, and petitioners were given 10 days within which to answer the complaint. This petition for a writ of prohibition followed.

In addition to the above mentioned facts, petitioners allege that all work has been stopped on the building; that the partially constructed building is in danger of being lost or destroyed by reason of the elements, theft or vandalism and that if such destruction occurs, they will suffer a loss in excess of $40,000; that the County of Alameda has ordered them to support laterally the masonry walls of the partially constructed building because of the abandonment of the construction pending the determination of the condemnation suit. Petitioners also allege that the loss they will suffer from the destruction of the existing structure is not compensable as damages in an eminent domain action and that if forced to support laterally the masonry walls, they will suffer additional expenses. It is contended that the city's complaint shows, on its face, that the action in eminent domain is not maintainable because a city of the sixth class may not exercise the power of eminent domain as to property outside its corporate limits; that if the superior court proceeds with the action, petitioners will suffer great loss; that an appeal from an adverse judgment is not an adequate remedy, and that a writ of prohibition should therefore issue. The city filed a memorandum in opposition, contending that the petition should be denied because an adequate remedy exists by way of appeal from the judgment; and that the complaint is not [44 Cal.2d 634] defective on its face because a city of the sixth class may exercise the power of eminent domain outside its corporate limits.

We said in Rescue Army v. Municipal Court, 28 Cal.2d 460, 462, 171 P.2d 8, 10, that 'The constitutionaliy of a statute or ordinance may be tested by prohibition on the ground that invalidity of the legislation goes to the jurisdiction of the court to proceed to try the case. See Whitney v. Superior Court, 182 Cal. 114, 187 P. 12; Levy v. Superior Court, 105 Cal. 600, 38 P. 965, 29 L.R.A. 811; Arfsten v. Superior Court, 20 Cal.App. 269, 275, 128 P. 949; * * *.' We also said that 'In prohibition, however, we are limited by statute to proceedings without or in excess of jurisdiction (Code Civ.Proc., § 1102) and we are therefore squarely confronted with the problems referred to above.' We went on to hold that when the trial court has heard and determined that it has jurisdiction, prohibition will lie to prevent the exercise thereof when that jurisdiction is challenged in that court 'by demurrer, motion, plea or other objection of some kind.' When the trial court has heard and determined the jurisdictional challenged and has decided in favor of its own jurisdiction, and then proceeds to act to try the cause on its merits, it may then be claimed that a court without jurisdiction is purporting to exercise it. Then, jurisdiction to determine jurisdiction has been exercised and the higher courts will restrain the lower court from acting in excess of its jurisdiction. Greenberg v. Superior Court, 19 Cal.2d 319, 121 P.2d 713; Abelleira v. District Court of Appeal, 17 Cal.2d 280, 109 P.2d 942, 132 A.L.R. 715; Jackson v. Superior Court, 10 Cal.2d 350, 74 P.2d 243, 113 A.L.R. 1422.

The city contends that prohibition will not lie in that petitioners have a speedy and adequate remedy by way of appeal. As was held in Gorbacheff v. Justice's Court, 31 Cal.2d 178, 180, 187 P.2d 407, 409, the fact that an appeal is available does not, in and of itself, necessarily preclude resort to prhobition. Section 1103 of the Code of Civil Procedure authorizes the issuance of the writ, even though an appeal may be taken, if the remedy by appeal is inadequate. In the usual situation an appeal is considered an adequate remedy, 'but no hard and fast rule can be laid down to determine in

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advance whether it fully meets the requirements of justice in a particular case.'

We said in Providence Baptist Church v. Superior [44 Cal.2d 635] Court, 40 Cal.2d 55, 60, 251 P.2d 10, 13, that 'It is the general rule 'that the remedy in the ordinary course of law by an appeal from the judgment at the end of the trial is not adequate when the court has no jurisdiction to proceed with the action and no appeal is available before final judgment. Tomales Bay, etc., Corp. v. Superior Court, 35 Cal.2d 389 (392), 217 P.2d 968.' City of San Diego v. Superior Court, supra, 36 Cal.2d 483, 485, 224 P.2d 685, 686. * * * 'Where an order is not appealable, but is rviewable only upon appeal from a subsequent judgment, various factors, such as expense of proceedings with a trial and prejudice resulting from delay, may operate to make that remedy inadequate.' Phelan v. Suerior Court, 35 Cal.2d 363, 370, 217 P.2d 951, 955.' There is no appeal from the order overruling the demurrer, Gossman v. Gossman, 74 Cal.App.2d 233, 168 P.2d 495; Southern California Telephone Co. v. Damenstein, 81 Cal.App.2d 216, 183 P.2d 675, hence, petitioners would be forced to go through the expense of the trial of the eminent domain...