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

• Citation: 69 Cal.Rptr. 110,262 Cal.App.2d 634
• Parties: The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. Ralph E. BECKER and Lavon L. Becker, Defendants and Appellants. Civ. 8772.
• Decision Date: 31 May 1968
• Court: California Court of Appeals

Page 110

69 Cal.Rptr. 110

262 Cal.App.2d 634

The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. Ralph E. BECKER and Lavon L. Becker, Defendants and Appellants.

Civ. 8772.

Court of Appeal, Fourth District, Division 1, California.

May 31, 1968.

Hearing Denied July 24, 1968.

[262 Cal.App.2d 635] Thorpe, Sullivan, Clinnin & Workman, Los Angeles, for defendants and appellants.

Harry S. Fenton, Sacramento, Chief Counsel of the Department of Public Works, Richard G. Rypinski and Sherman E. Hollingsworth, San Diego, Attys. for Department of Public Works, for plaintiff and respondent.

OPINION

WHELAN, Associate Justice.

Defendant property owners appeal from a judgment in condemnation insofar as the judgment denied any severance damages.

STATEMENT OF FACTS

Defendants' property before the taking was an irregularly shaped parcel containing 1.52 acres. The property fronted on Interstate Highway 8, sometimes known as Highway 80. The property was improved with a service station and its auxiliary improvements plus a one-story house and garage. Parcel 1, the part taken, has an area of .14 acres, and the property remaining to defendants has an area of 1.38 acres.

The property taken has become a part of the right-of-way of the state highway on which defendants' remaining property now fronts. That highway is now a frontage road that connects at both ends with Interstate 8 in its new location to the north. The southerly line of the new right-of-way of the frontage road passes through the service station improvements and all such improvements touched by the line were acquired by the state.

In the before condition, defendants had access to the right-of-way of the old State Highway 80 all along the frontage of their property. In the after condition they have access to the frontage road, which is slightly offset from where the old highway was. If one were to leave the property he would travel approximately 1,000 feet westerly on the frontage road until he reached an overcrossing (West Willow Road Interchange), at which point he could go on the freeway eastbound or cross over the freeway and go on the freeway westbound. He might also travel on the frontage road eastward a distance of 2 3/4 miles to reach another interchange where he would be able to go on the freeway eastbound or westbound. In order to reach defendants' property from the new highway, a traveler going west would pass the property and leave the freeway at the West Willow Road Interchange and then cross over the freeway and come back to the property on the frontage road. A traveler proceeding east on the new highway would get off at the same interchange and proceed easterly on the same frontage road to the property. If he did not leave Interstate 8 at the West Willow Road Interchange, the eastbound traveler would continue east 2 3/4 miles to the next interchange and then come back west the same distance on the frontage road.

The highest and best use of defendants' property before the taking was much the same use as that being made of it at the time of the taking: namely, service station and residential use, with the probability of expansion of the residential use by rental units.

After the taking, the highest and best use of defendants' property is for residential purposes only. It will no longer be suited for many commercial uses and its highest use will not be for a service station. This is because of its distance from the through highway. Prior to the taking, defendants' property had a frontage of 226.49 feet on the right-of-way; after the taking, the remaining property had a frontage of 222.48 feet on the right-of-way.

The width of the pre-existing paved roadway was approximately 22 feet within a 100-foot right-of-way of which a width of approximately 40 feet separated the paved roadway from defendants' property line. There was, however, a section of concrete pavement within the right-of-way forming a part of defendants' service station improvements.

After construction of the improvement, the paved roadway is 24 feet wide with an eight-foot shoulder which is separated from defendants' remaining property by a strip about 7 feet wide; to the north of the paved roadway there is another strip approximately 7 feet wide, then a chainlink fence; the right-of-way of the relocated Interstate 8 is to the north of the fence, within which right-of-way is a paved roadway 24 feet wide for eastbound traffic and separated from it by at least 100 feet a similar paved roadway for westbound traffic.

It appears from maps in evidence that before the taking there was on Interstate 8 no intersecting north-south public highway between the point where West Willow Road interchange is now located and the nearest interchange east of defendants' property; that the only highway joining Interstate 8 within that stretch was West Willow Road itself which went off from Interstate 8 in a northeasterly direction and rejoined the main highway where the next interchange of the new freeway is to the east of defendants' property.

It does not appear, nor is it claimed, that the view of defendants' property even from the freeway in that section within the northerly extensions of the easterly and westerly boundaries of defendants' property is destroyed by the taking or construction.

After hearing testimony as to the amount of severance damage and the factors upon which it was premised, the trial court struck out that testimony. That testimony was as follows:

'A The remaining property, in my opinion, no longer has the same utility or potential uses as the property had before.

'* * *

'A The access to the highway, freeway, main highway has been impaired. That is the principle reason, of course. The expression that I used or intended to use, site value, is another element. That refers to the ability of persons on the highway, the main highway, to recognize the place, see the place and know it is there.

'* * *

'A Yes, but the property in the before condition had access to the Highway, the major highway. The only highway. In the after condition, it is separated from the main through highway.

'* * *

'A You would have to travel under the present proposed construction, you would have to travel what is called the West Willow overpass or interchange, I should say, which is, oh, possibly eleven hundred feet west of the property.

'* * *

'A It impairs the access inasmuch as the person traveling on the highway who wants to get to this particular point, the Becker property, has to go--move to an interchange, and reach the outer highway and travel by that, to the Becker property. It can not go directly from the highway to the Becker property, that is the distinction.'

The property will not have its highest use for a service station in the after condition 'because of this difficulty getting to the through highway.'

CONTENTION ON APPEAL

The sole contention on appeal is that the trial court erred in finding that there was no substantial impairment of defendants' easement of access to the through highway that is now a freeway known as Interstate 8.

Their arguments are based largely upon alleged similarities between the facts of the present use and those in such cases as People v. Ricciardi, 23 Cal.2d 390, 144 P.2d 799; Blumenstein v. City of Long Beach, 143 Cal.App.2d 264, 299 P.2d 347; Breidert v. Southern Pac. Co., 61 Cal.2d 659, 39 Cal.Rptr. 903, 394 P.2d 719; Valenta v. County of Los Angeles, 61 Cal.2d 669, 39 Cal.Rptr. 909, 394 P.2d 725; Rose v. State of California, 19 Cal.2d 713, 123 P.2d 505; Bacich v. Board of Control, 23 Cal.2d 343, 144 P.2d 818; and People ex rel. Dept. of Public Works v. Giumarra Vineyards Corp., 245 Cal.App.2d 309, 53 Cal.Rptr. 902.

Of those cases Bacich v. Board of Control, supra; Breidert v. Southern Pac. Co., supra, and Valenta v. County of Los Angeles, supra, were all appeals from judgments based upon orders sustaining demurrers; they did not involve, therefore, a claim of error based upon a trial court's determination that no substantial impairment of the easement of access had been shown.

While that determination has been said to be a matter of law, it is in truth a mixed question of law and fact. (See People ex rel. Dept. of Public Works v. Wasserman, 240 Cal.App.2d 716, 50 Cal.Rptr. 95.) ¹ It is in any event a question to be determined by the trial judge as a preliminary to submitting to the jury the question of the amount of damage if the court should have decided there was substantial impairment.

In People v. Ricciardi, supra, 23 Cal.2d 390, 144 P.2d 799, there are four factors that are absent from the present case, the materiality of which will be discussed separately. The construction there was in part an underpass on one of two heavily traveled streets at the intersection of which defendants' property was situated; the underpass, 17 feet below grade at its lowest point, immediately west of that property, cut off all visibility of the property along the entire width of the property; secondly, the underpass was partly constructed on the property taken from defendant; thirdly, the property was in a highly urbanized area; fourthly, the trial judge determined there had been substantial impairment of the easement of access.

In Blumenstein v. City of Long Beach, supra, 143 Cal.App.2d 264, 299 P.2d 347, the plaintiff's property was completely cut off from one of the two streets on which it had faced as the result of the intrusion of the off-ramp of a freeway between his property and the traveled portion of that street.

In People ex rel. Dept. of Public Works v. Giumarra Vineyards Corp., supra, 245 Cal.App.2d 309, 53 Cal.Rptr. 902, defendants' only means of access to any highway was cut off and replaced by another at the opposite end of plaintiff's 356-acre tract and distantly removed from its packing shed.

In Rose v. State of California, supra, 19 Cal.2d 713, 123 P.2d 505, a subway under...