McDonald v. State
| Decision Date | 16 February 1955 |
| Citation | 279 P.2d 777,130 Cal.App.2d 793 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Ruby L. McDONALD, Herman Henry and Louis Grossi, Herman Henry, Ambrose Connolly and Cornelia M. Connolly, Ellis Dresback and Lola Dresback, Plaintiffs and Appellants, v. STATE of California, acting by and through the Department of Public Works, the Highway Commission and the Division of Highways: C. H. Purcell, as Director of Department of Public Works and as exofficio officer and chairman of the California Highway Commission: Harrison R. Baker, Homer B. Brown, James A. Guthrie, Walter Sandelin, C. Arnholt Smith and Chester H. Warlow, as members of and constituting the California Highway Commission; George T. McCoy, as State Highway Engineer; P. O. Harding, Assistant State Highway Engineer, and John G. Meyer, as District Engineer, Defendants and Respondents. Civ. 8506. |
Desmond, Miller & Artz, H. D. Jerrett, Sacramento, for appellants.
Robert E. Reed, Norris J. Burke, Harry S. Fenton, Russell S. Munro and Robert F. Carlson, Sacramento, for respondents.
This is an appeal from a judgment of dismissal entered upon an order sustaining a demurrer to a second amended complaint without leave to amend in an action against the State and certain of its officers and employees for their alleged destruction of appellants' right of direct access to a State highway in Solano County.
Appellants are the owners and lessees of certain parcels of real property abutting upon the western boundary of a public road known as Plumas Street which was originally a county road 40 feet in width. Sometimes prior to 1943 the State constructed a major highway known as State Highway Road X, Solano 7-G and U. S. 40, which adjoined and paralleled said Plumas Street on its eastern boundary. No physical barrier was then erected on the common boundary of the two thoroughfares so that there existed free and direct access between said state highway and appellants' respective properties by crossing over Plumas Street at any point thereon. However, in 1948 the State constructed a reinforced concrete wall in Plumas Street four feet high and extending for its length from Solano Street to Alabama Street, between which two intersections appellants' properties lie. The wall was built approximately 11 feet in from the easterly boundary of Plumas Street, thereby reducing its width in front of appellants' properties from 40 to 29 feet and preventing passage between said properties and the state highway except by traveling on Plumas Street to the next intersection in either direction. Appellants maintain that, as a result, their properties have been damaged, as all direct access therefrom to the state highway between Solano and Alabama Streets has been destroyed, thereby making it more difficult to reach their properties.
The first amended complaint alleged that appellants' properties abutted on Plumas Street, a county road, and that prior to respondents' construction of the wall in that street, appellants were 'accustomed to and did enjoy, the open, free, and unobstructed light, view, and direct access to and from said Plumas Street and directly across the same to and from the major public highway known as State Highway Road X, Solano 7-G and U. S. 40, which state highway immediately adjoined and paralled said Plumas Street for the entire length of said Plumas Street between Solano and Alabama Streets in said county.' Substantially identical allegations were contained in the original complaint as filed. A demurrer to the first amended complaint was sustained on the ground that it appeared from the allegations thereof that appellants' properties abutted on Plumas Street, and not on the state highway, and, therefore, appellants had no abutters' rights thereto. Appellants thereupon amended their complaint by omitting any reference to Plumas Street and alleging that their properties 'abutted upon a certain public road known as California State Highway X, Solano 7-G, U. S. 40', that respondents erected the concrete wall 'on the right of way of said highway', and that as a result thereof appellants lost their former, free and unobstructed view and direct access to and from all portions of said state highway. Contrary to the allegations of the second amended complaint, the trial court held that appellants were not owners of property abutting on the state highway because the original and first amended complaints showed that Plumas Street lay between appellants' properties and the state highway. Therefore, respondents' demurrer to the second amended complaint was sustained without leave to amend.
Upon this appeal from said judgment, appellants tacitly concede that their causes of action sounding in inverse condemnation are dependent upon their being owners of properties which abut on the state highway to which they claim the right of direct access. They claim that, as a matter of law, they are such owners. They contend that not only did they so allege in the second amended complaint but that they are such in fact.
Appellants first argue that the trial court, in ruling on the demurrer to the second amended complaint, could not consider the allegations that their properties fronted on Plumas Street, which were contained in the superseded, prior pleadings. They rely upon cases such as Collins v. Scott, 100 Cal. 446, 453-454, 34 P. 1085; Sheehy v. Roman Catholic Archbishop, 49 Cal.App.2d 537, 541-542, 122 P.2d 60, and Meyer v. State Board of Equalization, 42 Cal.2d 376, 384-385, 267 P.2d 257, holding that a pleading is suspended by an amended pleading. Therefore, they maintain that the trial court was bound by the allegation of the second amended complaint that their properties abutted on the state highway. With this contention we do not agree.
A prior pleading may be referred to where an amendment thereof consists of merely omitting, without explanation, substantive allegations which rendered the prior pleading fatally defective. Slavin v. City of Glendale, 97 Cal.App.2d 407, 410-411, 217 P.2d 984; Wennerholm v. Stanford University School of Medicine, 20 Cal.2d 713, 716, 128 P.2d 522, 141 A.L.R. 1358. As already noted, the location of appellants' properties in relation to the state highway is determinative of their alleged status as owners of property abutting thereon. If the allegation in the original and first amended complaint that appellants' properties fronted on Plumas Street was destructive of the causes of action predicated on such properties abutting on the state highway, the defect could not be remedied by the simple device of omitting such allegation in the second amended complaint without adequate explanation. Owens v. Traverso, 125 Cal.App.2d 803, 808, 271 P.2d 164. No explanation for such omission was pleaded. Therefore, the trial court properly considered all the pleadings in determining whether or not the appellants could state a cause of action based on their owning properties which abut on the state highway to which t...
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