Miro v. Superior Court

• Decision Date: 05 March 1970
• Court: California Court of Appeals Court of Appeals
• Parties: Samuel MIRO and Loree Miro, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SAN BERNARDINO, Respondent, CITY OF RIALTO, a municipal corporation, Real Party in Interest. Civ. 9893.

Page 874

84 Cal.Rptr. 874

5 Cal.App.3d 87

Samuel MIRO and Loree Miro, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SAN BERNARDINO, Respondent, CITY OF RIALTO, a municipal corporation, Real Party in Interest.

Civ. 9893.

Court of Appeal, Fourth District, Division 2, California.

March 5, 1970.

[5 Cal.App.3d 91] Redwine & Sherrill and Justin M. McCarthy, Riverside, for petitioners.

Roger A. Saevig, Camarillio, and Ward O. Mathews, Rialto, for real party in interest.

OPINION

TAMURA, Associate Justice.

This is an original proceeding. Petitioners (the Miros) seek a writ of mandate to set aside an order of immediate possession issued by respondent court in an eminent domain action instituted by the City of Rialto, real party in interest herein, to condemn property for airport purposes.

The controlling issue is whether the right of immediate possession authorized by section 14, article I, of the California Constitution and section 1243.4 of the Code of Civil Procedure extends to property sought to be condemned for airport purposes. We have concluded that it does not and that the order of immediate possession must therefore be set aside.

The relevant facts are uncontradicted. They may be summarized as follows:

The Miros formerly owned an 80 acre parcel which abutted Linden Avenue in the City of Rialto. The street ran north and south along the easterly edge of the parcel. In April 1966 the Miros granted the city an option to purchase 58 acres for municipal airport purposes; the option left the Miros approximately 22 acres located at the southeast corner of the 80 acre parcel. The option contained the following paragraph:

'At all times both present and in the future, Linden Avenue will be made accessible to that portion of REAL PROPERTY retained by OPTIONORS and shall run adjacent to the EAST side of said REAL PROPERTY notwithstanding any subsequent changes for rerouting of Linden Avenue by OPTIONEES, and said Linden Avenue will be maintained by OPTIONEE with no cost to OPTIONORS. It is the desire of OPTIONORS that OPTIONEE assert all reasonable efforts to have the present course of Linden Avenue remain so that it will be a through street running in a Northerly- Southerly direction. In the event a runway to the AIRPORT is constructed so that it crosses Linden Avenue, an underpass will be constructed allowing Linden Avenue to continue being a through street.'

In June 1966 the city exercised the option through a 'straw man.' The escrow instructions and the deed to the city did not contain the quoted provisions of the option agreement.

In November 1968 the city council, pursuant to applicable provisions of the Streets and Highways Code, adopted a resolution vacating that portion of Linden Avenue which abutted the municipal airport. Thereupon the Miros sued the city to reform the deed to the 58 acres to include the terms of the option agreement relating to Linden Avenue and to enjoin its closure. The Miros prevailed. In March 1969 judgment was entered which decreed that the city 'does not have the right to close Linden Avenue or to construct a runway across said street without constructing an underpass so as to allow Linden Avenue to remain a through street,' ordered reformation of the deed, and enjoined the city from closing Linden Avenue without constructing an underpass. The city's appeal from the judgment is pending.

In June 1969 the city commenced eminent domain proceedings to condemn for the 'construction and maintenance of an airport right-of-way and airport' a strip of land constituting the segment of Linden Avenue abutting the airport. The complaint alleged city ownership of the fee by virtue of the resolution vacating the street and described the Miros' interest as 'right of access in, over and across said parcel to the next intersecting street' to the north. Upon the filing of the action, the city obtained an order of immediate possession.

In their answer, in addition to ascribing a value to the part taken and claiming severance damages to the 22 acres retained by them, the Miros set up an affirmative defense in which they alleged, in essence, that the eminent domain action constituted an attempt by the city to circumvent the decree enjoining it from closing Linden Avenue and charged that the proposed take was therefore not for a 'public use.' Coincident with the filing of their answer, the Miros moved to quash the order of immediate possession. Denial of the motion led to the filing of the present petition for a writ of mandate. ¹

The question whether respondent court was empowered to issue the order of immediate possession is properly before us. Jurisdiction to issue an order of immediate possession in an eminent domain action may be reviewed by an appellate court in an original proceeding. (Weiler v. Superior Court, 188 Cal. 729, 207 P. 247; O. T. Johnson Corp. v. Superior Court, 103 Cal.App.2d 278, 229 P.2d 849; see Harden v. Superior Court, 44 Cal.2d 630, 637, 284 P.2d 9; San Bernardino County Flood Etc. Dist. v. Superior Court, 269 Cal.App.2d 514, 75 Cal.Rptr. 24; State of Cal. ex rel. Dept. of Water Resources v. Natomas Co., 239 Cal.App.2d 547, 558, 49 Cal.Rptr. 64.)

The power of a superior court to issue an order of immediate possession upon commencement of an eminent domain action is derived from section 14, article I, of the California Constitution (hereafter section 14), as implemented by sections 1243.4 to 1243.7 of the Code of Civil Procedure. ²

Section 14 reads in pertinent part:

'Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for, the owner * * *; provided, that in any proceeding in eminent domain brought by * * * a municipal corporation * * *, the aforesaid * * * may take immediate possession and use of any right of way * * *, required for a public use whether the fee thereof or an easement therefor be sought upon first commencing eminent domain proceedings according to law in a court of competent jurisdiction and thereupon giving such security in the way of money deposited as the court in which such proceedings are pending may direct, and in such amounts as the court may determine to be reasonably adequate to secure to the owner of the property sought to be taken immediate payment of just compensation for such taking and any damage incident thereto, * * * as soon as the same can be ascertained according to law * * *.'

Section 1243.4 of the Code of Civil Procedure restates the enabling provisions of section 14 in substantially the same language. It provides that entities named in section 14 'may take immediate possession and use of any right of way, * * * required for a public use whether the fee thereof or an easement therefor be sought, in the manner and subject to the conditions prescribed by law.' The procedure for fixing the amount of security, for obtaining and serving an order of immediate possession and for withdrawal of security deposits are prescribed by sections 1243.5 to 1243.7.

The Miros concede, as they must, that their interest in the segment of Linden Avenue in question may be taken by the City for municipal airport purposes upon payment of just compensation. A municipality is empowered to acquire property by eminent domain for airport purposes. (Govt.Code, § 50470; Code Civ.Proc. § 1238, subd. 20.) Without attempting to define the precise nature or extent of their interest in subject property, the undisputed facts indicate that the Miros' alleged interest stems from either (1) rights reserved under the option agreement and the court decree, ³ or (2) a private easement of access in, over, and across the strip by virtue of their retention of the 22 acres abutting Linden Avenue (Bacich v. Board of Control, 23 Cal.2d 343, 349, 144 P.2d 818; Lane v. San Diego Elec. Ry. Co., 208 Cal. 29, 33, 280 P. 109; Norcross v. Adams, 263 Cal.App.2d 362, 366, 69 Cal.Rptr. 429), or both. A reservation of rights in lands granted or dedicated to a government agency may not be substantially impaired or destroyed by the government without payment of just compensation (Pedro v. County of Humboldt, 217 Cal. 493, 497, 19 P.2d 776; People ex rel. Dept. of Pub. Wks. v. DiTomaso, 248 Cal.App.2d 741, 755-756, 57 Cal.Rptr. 293; Wofford Heights Associates v. County of Kern, 219 Cal.App.2d 34, 42, 32 Cal.Rptr. 870; Hill v. City of Oxnard, 46 Cal.App. 624, 189 P. 825). But such rights may be taken for public use upon payment of just compensation. (See People ex rel. Dept. Pub. Wks. v. DiTomaso, supra, 248 Cal.App.2d pp. 755--756, 57 Cal.Rptr. 293; People ex rel. Dept. of Public Works v. City of Los Angeles, 179 Cal.App.2d 558, 574, 4 Cal.Rptr. 531; Hanna v. Rodeo-Vallejo Ferry Co., 89 Cal.App. 462, 468, 265 P. 287.) Similarly, while the right of an abutting owner of access in a public street on which his property abuts may not be substantially impaired or destroyed without payment of just compensation (Breidert v. Southern Pac. Co., 61 Cal.2d 659, 664, 39 Cal.Rptr. 903, 394 P.2d 719; Valenta v. County of Los Angeles, 61 Cal.2d 669, 672, 39 Cal.Rptr. 909, 394 P.2d 725; Phillips v. City of Pasadena, 27 Cal.2d 104, 106--107, 162 P.2d 625; Constantine v. City of Sunnyvale, 91 Cal.App.2d 278, 284, 204 P.2d 922), such rights may, by necessary implication, be taken for a public use by eminent domain (People v. Ricciardi, 23 Cal.2d 390, 400, 144 P.2d 799).

While conceding that the city has the power to condemn their interest for a public use, the Miros contend that the instant action is merely an attempt to circumvent the judgment in the prior action and that, consequently, the proposed take is not for a 'public use' and immediate possession is unauthorized. The contention is without merit. While public use is a justiciable issue in an eminent domain action (People ex rel. Dept. of Public Works v. Chevalier, 52 Cal.2d 299, 304, 340 P.2d 598), in the instant case it is conceded...