Orpheum Bldg. Co. v. San Francisco Bay Area Rapid Transit Dist.

• Decision Date: 13 April 1978
• Citation: 146 Cal.Rptr. 5,80 Cal.App.3d 863
• Court: California Court of Appeals Court of Appeals
• Parties: ORPHEUM BUILDING COMPANY et al., Plaintiffs, Appellants and Respondents, v. SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, Defendant, Respondent and Appellant. Civ. 38949.

Page 5

146 Cal.Rptr. 5

80 Cal.App.3d 863

ORPHEUM BUILDING COMPANY et al., Plaintiffs, Appellants and Respondents, v. SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, Defendant, Respondent and Appellant.

Civ. 38949.

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

April 13, 1978.

James T. Johnson, Dobbs, Doyle & Nielsen, Fitzgerald, Johnson, Berg & Edgar, San Francisco, for Orpheum Building Co. and Northcoast Theatres Corp.

John H. Tallett, Rogers, Vizzard & Tallett, Rogers P. Smith, Bledsoe, Smith, Cathcart, Boyd & Eliot, San Francisco, for San Francisco Bay Area Rapid Transit Dist.

TAYLOR, Presiding Justice.

The owners, Orpheum Building Company (Orpheum) and their lessee, Northcoast Theatres Corporation (Northcoast), appeal from an adverse judgment after a bifurcated trial of their complaint against Bay Area Rapid Transit District (BART) alleging causes of action for inverse condemnation, nuisance, trespass and third party beneficiary. On the bifurcated cause of action for inverse condemnation, the jury found no damages and special benefits. As to inverse condemnation, Orpheum and Northcoast contend that: 1) they were deprived of a jury trial; 2) the court erroneously restricted the period of recovery to one year; 3) the court improperly excluded evidence of noise, loss of easement of view, dust and fumes as a basis of liability; and 4) the court prejudicially refused to permit the jury to consider loss of rental income as an element of damages. As to the other causes of action, Orpheum and Northcoast contend that they were deprived of a jury trial and that the court erred in concluding that there was no basis of liability for nuisance. BART cross-appeals from a minute order ¹ granting reimbursement of costs to Orpheum and Northcoast and denying them to BART. For the reasons set forth below, we have concluded that there is no merit to any of these contentions.

The basic facts are not in dispute and were found as follows by the trial court: Orpheum owned property at 1176-1190 Market Street in San Francisco (city). The Orpheum property was improved by an office building and a theatre building. The theatre was leased to Northcoast.

In June 1967, construction of the BART Civic Center Station was commenced within the confines of Market Street, a city street. A portion of the construction activity was in the street area adjacent to the Orpheum property. The construction was substantially completed in February 1971 and fully completed in April 1971. The Civic Center Station was built below the surface of the street area and involved construction activities on the surface of the street as well. BART, by law, as well as by agreement with the city, had a right to use and occupy the public street to construct the Civic Center Station.

In the course of the construction of the Civic Center Station, BART's contractors necessarily excavated portions of Market Street near the Orpheum property with the use of heavy construction equipment. Pile drivers were used to construct walls, to support the underground station and subway. At all times during construction, some physical access to and from the Orpheum property, including the theatre, was provided by the contractor. From time to time during the course of construction, while use was made of heavy construction equipment including pile drivers and jackhammers, vehicular and pedestrian traffic was diverted in the street adjoining the Orpheum property. Wooden sidewalks were constructed, normal street activities were disrupted, and dust and noise resulted.

During the course of construction of the BART Civic Center Station, to protect the safety of the public and pedestrians, it was necessary to erect and maintain protective barriers approximately eight feet high on the sidewalk in front of the Orpheum property to separate pedestrian traffic from the construction activity. Except for a six-month period, the protective fences were maintained ten feet from the property line of the Orpheum property. From January 5, to June 17, 1968, and for other temporary intervals, the fences were placed at a five-foot distance from the property line to permit the construction of a mezzanine wall for the underground station.

The activities of BART and its contractors in its construction of the BART Civic Center Station were reasonable and necessary in order to accomplish the public project according to the plans and specifications. The evidence introduced by Orpheum and Northcoast showed no physical damage or physical invasion by the construction activity.

At no time during the construction did BART or its contractors trespass on the Orpheum property.

No agreement between BART and the city contains any provision which would inure to the benefit of Orpheum or Northcoast or provide, either expressly or impliedly, that Orpheum or Northcoast were third party beneficiaries of that agreement. The same is true of the permits issued to BART or its contractors by the city.

The maintenance of a sidewalk barrier within five feet of the Orpheum property line for the period January 5, 1968, to June 17, 1968, resulted in substantial interference with access to the property, and it is for a jury to determine the damages, if any. Orpheum and Northcoast are also permitted to claim damages, if any, resulting from the access limitation for the additional period from June 17, 1968, to January 15, 1969. No other activities on the part of BART resulted in the taking or damaging of the Orpheum property.

We turn first to the contentions pertaining to inverse condemnation. Orpheum and Northcoast first argue that they were deprived of a jury trial on the issue of BART's liability for inverse condemnation.

As indicated above, the inverse condemnation cause of action was bifurcated pursuant to Code of Civil Procedure section 598, leaving the liability issue to be determined by the trial court and the damages, if any, by the jury. This has long been the proper procedure in this state (People v. Ricciardi, 23 Cal.2d 390, 402, 144 P.2d 799). As stated in United California Bank v. People ex rel. Dept. Pub. Wks., 1 Cal.App.3d 1, 6, 81 Cal.Rptr. 405, 409: "Not all damaging interferences with property rights are actionable, however, and a determination must be made as to whether there is an 'actionable interference' with a property right; or, to use another term, 'substantial impairment.' It is the trial court and not the jury, which makes this determination."

The gravamen of the cause of action for inverse condemnation was the impairment of access. Whether there has been substantial impairment of access is a mixed question of law and fact, and, therefore, to be determined by the trial court before submission of the damage question to the jury (Breidert v. Southern Pacific Co., 272 Cal.App.2d 398, 409, 77 Cal.Rptr. 262). The same is true of noise (Aaron v. City of Los Angeles, 40 Cal.App.3d 471, 484, 115 Cal.Rptr. 162), and of temporary interference or unreasonable delay by the public agency (City of Los Angeles v. Lowensohn, 54 Cal.App.3d 625, 127 Cal.Rptr. 417). The evidence adduced in the three-week liability portion of the trial was properly weighed by the trial judge alone. Thus, Orpheum and BART were not deprived of a jury on their cause of action for inverse condemnation.

Orpheum and Northcoast next contend that the court erred in restricting BART's potential inverse condemnation liability to interference with access. They contend that the court erroneously precluded them from presenting to the jury evidence of unreasonable delay, noise, and loss of easement of view, as well as dust and fumes as a basis of liability. ²

The applicable principle of law was summarized in People v. Ayon, 54 Cal.2d 217, 5 Cal.Rptr. 151, 352 P.2d 519, as follows, at page 228, 5 Cal.Rptr. at page 157, 352 P.2d at page 525: "Temporary injury resulting from actual construction of public improvements is generally noncompensable. Personal inconvenience, annoyance or discomfort in the use of property are not actionable types of injuries. (Citations.) 'It would unduly hinder and delay or even prevent the construction of public improvements to hold compensable every item of inconvenience or interference attendant upon the ownership of private real property because of the presence of machinery, materials, and supplies necessary for the public work which have been placed on streets adjacent to the improvement.' (Heimann v. City of Los Angeles, supra, 30 Cal.2d (746) at p. 755, (185 P.2d 597).) Appellants are not entitled to compensation for temporary interference with their right of access, provided such interference is not unreasonable, that is occasioned by actual construction work. It is often necessary to break up pavement, narrow streets and provide inconvenient modes of ingress and egress to abutting property during the time streets are being repaired or improved. Such reasonable and temporary interference with the property owner's right of access is noncompensable."

Orpheum and Northcoast failed to adduce any evidence that any delays, noise, dust and fumes, or the loss of view were unreasonable or unusual, given the size and scope of the Civic Center Station construction project. The uncontroverted evidence indicated that the Civic Center Station required a heavier foundation than the others, as the older buildings in the area had no foundations, only wooden mud sills. One of the alternatives under the contract provided for the construction of a soilder pile tremie concrete wall (SPTC) for the Civic Center Station. This type of construction was slower and more expensive than others; however, it was preferable from a long range point of view.

The building of the SPTC wall involved excavation from below, while a bentonite slurry mixture is poured in from the top. The specific gravity of the mixture can be controlled by the addition of bentonite until its specific gravity is equal to that of the surrounding soil; it...