Ocean Shore R. Co. v. City of Santa Cruz

• Decision Date: 20 December 1961
• Court: California Court of Appeals Court of Appeals
• Parties: OCEAN SHORE RAILROAD COMPANY, a California corporation, Plaintiff and Appellant, v. CITY OF SANTA CRUZ, a Municipal Corporation, Defendant and Respondent. Civ. 19341.

Page 892

17 Cal.Rptr. 892

198 Cal.App.2d 267

OCEAN SHORE RAILROAD COMPANY, a California corporation, Plaintiff and Appellant, v. CITY OF SANTA CRUZ, a Municipal Corporation, Defendant and Respondent.

Civ. 19341.

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

Dec. 20, 1961.

Rehearing Denied Jan. 9, 1962.

Hearing Denied Feb. 14, 1962.

Vernon W. Humber, Roy D. Reese, San Francisco, for appellant.

John R. Barber, Jr., City Atty., Santa Cruz, John D. Rogers, Sp. Counsel, San Francisco, for respondent.

SALSMAN, Justice.

The trial court sustained a general demurrer to the appellant's first amended complaint and refused leave to amend further. This appeal is from the judgment thereafter entered.

It is the appellant's contention that its land has been taken by the respondent and that Article I, Section 14 of the California Constitution guarantees appellant's right to compensation; that no statute of limitations has been directed to this constitutional provision, and that respondent cannot be deemed to have acquired any right or title to appellant's property by adverse posses sion. The respondent, on the other hand, contends that statutes of limitation do apply to rights arising out of Article I, Section 14 of the California Constitution, as well as to other rights; that a statute of limitations applies to the appellant's claim and that appellant's cause of action is barred.

The trial court agreed with the respondent and sustained its demurrer.

The appellant's cause of action is in inverse condemnation, by which the appellant seeks to recover the value of real property taken by the respondent for public use and to recover alleged damages done to the remainder of appellant's property.

The allegations of the complaint are to the effect that appellant is the owner and entitled to the possession of the lands described; that portions of these lands were used by the appellant as a road bed for its railroad from 1905 to 1922; that the property was posted with signs designating it as private property, and stating that permission to apss was revocable; that some time between 1922 and 1933 the respondent city, without notice to the appellant and without payment of compensation, entered upon appellant's land and constructed a public street rhereon; that respondent city has never paid for the property taken or any damages for severance; the property taken for public use is described and values fixed upon the various portions taken, and severance damage to the remainder is alleged. Appellant also alleges that on November 18, 1933 it notified the respondent city in writing that it was illegally using the appellant's property, and offered to sell an easement; that the respondent city, through its city engineer and street superintendent, notified appellant that it was 'not financially equipped to purchase the right of way' at that itme, but that 'it might be in the future it will be possible for the City' to consider the purchase; that in 1935 appellant notified the respondent that the property was posted as private property, with permission to pass revocable, and would hold the city responsible for damages occurring by reason of oiling, graveling and using the property as a public street. There are further allegations in the complaint to the effect that the city has not paid for the property taken or damage to the remainder; that the city never obtained any order of possion; and that the appellant allowed the respondent to remain in possession only in reliance upon the implied promise that when the respondent became financially able to do so it would pay the fair, full market value of the property taken and the damage to the remainder. Other allegations are to the effect that they city's entry was in violation of the Constitution of the State of California, Article I, Section 14, and of the Fifth and Fourteenth Amendments to the Constitution of the United States, and in violation of Sections 1237 to 1294.9 of the Code of Civil Procedure of the State of California.

The prayer of the complaint is for the determination by a jury of the value of the property taken and the severance damages, and for payment thereof by the respondent, together with interest on the award from the date of taking.

In their briefs the parties agree that the principal question to be decided is the applicability of a statute of limitations, if any, to the alleged cause of action.

We have concluded that general statutes of limitation are applicable to the cause of action set out in the appellant's complaint and the appellant's cause of action is barred by Code of Civil Procedure Section 338(2) and by the five year provisions of the Code a Civil Procedure relating to the acquisition of title by adverse possession.

In Wilson v. Beville, 47 Cal.2d 852, at 860, 306 P.2d 789, at 794, the court, in referring to the applicability of statutes of limitation to a claim in inverse condemnation stated: 'Such procedural matters are fully covered by the state statutes such as those on eminent domain, Code Civ.Proc. § 1237 et seq., and those on limiting the time within which actions may be brought. Code Civ.Proc. §§ 338(2), 318-325.' In a footnote to this passage the court added: 'There may be some question which statute applies in inverse condemnation cases.', and, after quoting at length from the article in 18 Cal.Jur.2d Eminent Domain, § 382, concluded: 'In any case the time within which recovery may be had is covered by state statute.'

It has been said that a state and its subdivisions, when taking private property for public use, cannot be a trespasser. (Aylmore v. City of Seattle, 100 Wash. 515, 171 P. 659, L.R.A. 1918E, 127.) However, in the early case of Potter v. Ames, 43 Cal. 75, it was held that a county may be held liable in trespass where it proceeds illegally in taking possession of land for a highway. In Robinson v. Southern Cal. Ry. Co., 129 Cal. 8, 61 P. 947, in effect an action in inverse condemnation, the plaintiff sought damages for the wrongful entry upon her lands by the defendant and the construction of a railroad across the property. The action was filed ten years after the wrongful entry and the court held that the defendant's conduct amounted to a trespass, and the cause of action was barred by Code of Civil Procedure § 338(2). The same result was reached on similar facts in Williams v. Southern Pacific R. R. Co., 150 Cal. 624, 89 P. 599. See also Heimann v. City of Los Angeles, 30 Cal.2d 746, at 753-754, 185 P.2d 597.

It sould be noted here that the appellant's complaint alleges that 'some time after the year 1922 and before November 18, 1933, the defendant City of santa Cruz * * * did enter upon the premises of the plaintiff and did construct thereon * * * a certain street or highway * * *' While the exact date of entry was not specified in the complaint it was represented to the trial court in oral argument on the demurrer that the entry...