People By and Through Dept. of Public Works v. Renaud

• Decision Date: 27 December 1961
• Citation: 198 Cal.App.2d 581,17 Cal.Rptr. 674
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Acting by and through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Appellant, v. Emma RENAUD et al., Defendants, Ralph Logan and Eunice Putnam Logan, Defendants and Respondents. *

Page 674

17 Cal.Rptr. 674

198 Cal.App.2d 581

PEOPLE of the State of California, Acting by and through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Appellant, v. Emma RENAUD et al., Defendants Ralph Logan and Eunice Putnam Logan, Defendants and Respondents. ^*

District Court of Appeal, Fifth District, California.

Dec. 27, 1961.

Rehearing Denied Jan. 24, 1962.

Hearing Denied Feb. 21, 1962.

Robert E. Reed, Holloway Jones, Jack M. Howard, Joseph F. DeMartini, Paul O. Lamphere and Robert J. DeFea, San Francisco, for appellant.

Crowe, Mitchell, Hurlbutt & Clevenger; J. Thomas Crowe, Visalia, for respondent.

BROWN, Justice.

The state brought this proceeding in eminent domain to acquire for frontage road purposes along a freeway the fee title to a parcel of real property owned by defendants Ralph Logan and Eunice Putnam Logan, and for the extinguishment of an easement owned by said defendants across adjacent land. The parties have designated the fee sought to be condemned as Parcel 9 and we adopt that designation.

Defendants are the owners of an irregularly shaped parcel of realty containing approximately 1.10 acres, located on the east side of Highway 99, approximately 1 1/4 miles sough of the traffic interchange known as the 'Visalia Interchange' and approximately 1 mile north of a proposed traffic interchange to be constructed by the state at Caldwell Avenue in the County of Tulare. The westerly boundary, fronting on Highway 99, is 368.28 feet in length; the north boundary is 234 feet in width; the east boundary is 326 feet in length and the south boundary is 117.5 feet in width. Defendants also own, by virtue of a separate grant, an easement for public road purposes approximately 368.28 feet in length over the westerly 25 feet of neighboring land to the north, containing approximately .221 acres. At the northerly end of the easement an opening located on the west side gives access to Highway 99. This is the only access point in a 2 1/4 mile stretch on the east side of Highway 99. This access point is shared by defendants and other property owners.

The record discloses that the easement consists of a dirt road. It further shows that Parcel 9 is improved with shrubs, trees and lawn, and that the remaining property of defendants is improved with a single family dwelling, in which defendants reside, an adjoining garage, a rental duplex with a built-in carport and landscaping.

In this action plaintiff seeks to acquire the west 50 feet of defendants' realty, fronting on the highway, containing approximately 423 acres, herein referred to as Parcel 9, and to extinguish the easement and close the access point. Plaintiff also proposes to close an existing opening in the center dividing strip of Highway 99 opposite the access point. The property is being acquired in connection with the construction of Highway 99 freeway and will be used as a frontage road along the east side of the freeway, but having no direct access thereto. The frontage road will commence in the vicinity of Caldwell Avenue, 500 feet east of Highway 99, proceeding thence on a curve in a general northwesterly direction to the highway, thence northerly along the east edge of said highway to a point approximately 368 feet north of Parcel 9, where there, it will be a cul-de-sac.

Plaintiff's witness Joseph H. Buckle, an engineer for the state, testified that, after completion of the proposed improvement defendants' property would not have direct access to the freeway. In order to reach a point on that freeway directly in front of the property, it will be necessary to travel in a southerly direction over the new frontage road to a point south of Caldwell Avenue, entering the freeway over a right-hand curve, then reverse direction and travel north on the freeway, for a total of 2.48 miles. In order for persons coming from the south to visit defendants' property, it will be necessary to travel in a northerly direction to the Visalia Interchange, approximately 1 mile past the property, then east on state Sign Route 198 to a point near the Visalia Airport, then through an opening in the center dividing strip, then west back to the Visalia Interchange, select the route to Bakersfield, which route includes a loop in a right-hand direction, then south on the freeway for a distance of approximately 2 miles to the Caldwell Avenue Interchange, then east on a ramp which curves up and over the freeway, then in an easterly direction along Caldwell Avenue for several hundred feet, then north on the new frontage road approximately 1 mile to defendants' property; and that the total distance from a point in the northbound lane of the freeway directly in front of defendants' property to the property is 4 3/4 miles. Other testimony was adduced as to the additional miles of travel which would be required to and from other directions upon completion of the proposed improvement.

Defendants called only one expert witness, George A. Murphy, an experienced and qualified real estate appraiser, who testified that, due to the plan of the proposed construction and the difficulty of ingress and egress caused thereby, the post office refused to deliver mail, and purveyors of milk, bread and other goods refused to make deliveries to defendants' home and to the rental units situated on their property. He further testified that the fair market value of the whole of defendants' property was $23,653.40; the value of Parcel 9 was $1,582, based on $3,600 per acre; the value of the easement, at the same acreage value, was $795.60; there were severance damages in the amount of $17,135; and there were no special benefits.

Plaintiff's expert witness, J. L. Philippe, testified that the fair market value of the entire property was $17,150; the value of Parcel 9 was $725; there were no severance damages; the easement had no value; and there were special benefits of $650.

After trial, the jury returned a verdict to $2,000 for Parcel 9 and the easement, severance damages of $13,000, and no benefits.

Plaintiff appeals and makes five assignments of error, as follows: (1) Error in adopting the unit measure of value for the easement; (2) Error in denying plaintiff's motion to strike the testimony of defendants' expert witness; (3) Error in the giving of instructions; (4) Error in denying plaintiff's motion for a mistrial based on prejudicial misconduct of a juror; and (5) Abuse of discretion in denying plaintiff's motion for a jury view.

Plaintiff urges, as grounds for reversal, that the court erred in receiving the testimony of defendants' valuation witness which applied to the easement sought to be extinguished the same acre value which was ascribed to Parcel 9. Plaintiff properly preserved the record by making timely and relevant objections to this evidence.

A long line of cases has held that a property owner abutting upon a public street or highway has a property right in the nature of an easement of ingress and egress to and from his property, and that right cannot be taken from him without just compensation (Rose v. State of California, 19 Cal.2d 713, 123 P.2d 505; Bacich v. Board of Control, etc., 23 Cal.2d 343, 144 P.2d 818). The taking of an easement of access to public highways is compensable measured in terms of severance damages, that is, in terms of the diminution in the value of the property which formerly had the easement of access. (Rose v. State of California, supra; Anderson v. State of California, 61 Cal.App.2d 140, 142 P.2d 88; People v. Al G. Smith Co., Ltd., 86 Cal.App.2d 308, 194 P.2d 750.)

In the instant case the easement must be considered to be appurtenant to the property in that it provided the only means of acess thereto. The defendants could not have used that strip for any purpose inconsistent with the right of other property owners to use it as a means of access to the highway. The damage for taking an easement appurtenant is measured by the injury to the land to which it is appurtenant (Olson v. United States, 8 Cir., 67 F.2d 24). This measure of damage is also set forth in 4 Nichols on Eminent Domain (3rd ed.), § 12.41, p. 151; and in 1 Orgel, Valuation Under the Law of Eminent Domain (2d ed.), § 111, p. 476, note 36. The portion of the judgment assessing damages for the value of the land taken, including the easement, must be reversed.

Obviously, the easement added to the value not only of the land actually taken but to the value of the land the title to which remained in defendants. Both the land actually taken and the remaining land were damaged by the taking of the easement, and an element therefor could properly be included in the award for severance damages as well as in the award of damages for the property taken. As above pointed out, one expert witness testified that the value of the land taken was, in his opinion, $1,582, and that the value of the easement on the same acreage basis was $795.60. The other expert witness placed the value of the land taken at $725 and assigned no separate value to the easement. The jury's verdict as to the value of the land actually taken was $2,000; we do not know whether the jury placed a separate value on the easement of $795.60 or some lesser figure, and the judgment will have to be reversed. However, it seems to us that the ascertainment of severance damages by the jury is amply supported by the evidence and that the only improperly resolved question is the award of damages for the actual taking.

Plaintiff next contends that the court erred in denying its motion to strike the testimony of defendants' only valuation witness and in restricting plaintiff's cross-examination. It argues that, in fixing his estimate of severance damages, Mr. Murphy considered the proposed closing of the existing opening in the center...