People By and Through Dept. of Public Works v. GiumarraVineyards Corp.

• Decision Date: 29 September 1966
• Citation: 53 Cal.Rptr. 902,245 Cal.App.2d 309
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Appellant, v. GIUMARRA VINEYARDS CORPORATION, Defendant and Respondent. Civ. 648.

Page 902

53 Cal.Rptr. 902

245 Cal.App.2d 309

The PEOPLE, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Appellant, v. GIUMARRA VINEYARDS CORPORATION, Defendant and Respondent.

Civ. 648.

District Court of Appeal, Fifth District,

California.

Sept. 29, 1966.

As Amended on Denial of Rehearing Oct. 20, 1966.

[245 Cal.App.2d 311] Harry S. Fenton, Chief Counsel, Sacramento, Holloway Jones, Deputy Chief Counsel, Jack M. Howard, Lee Tyler, Herman H. Fitzgerald, Richard S. Levenberg and William R. Edgar, San Francisco, for appellant.

Mack, Bianco & Means and Dominic Bianco, Bakersfield, for respondent.

OPINION

CONLEY, Presiding Justice.

In compliance with a desire to establish a freeway on part of highway 99 in Kern County, the People of the State of California, acting through the Department of Public Works, brought this suit to condemn property of Giumarra Vineyards Corporation located in its 356.63-acre vineyard, some seven miles north of Bakersfield. The complaint specified two parcels subject to the eminent domain proceeding, one being designated as parcel 10A, a small area near the southeastern corner of the defendant's property to provide a turn-around for a new access road built by appellant, ending near the southeasterly corner of respondent's property; the other, numbered 10B, being

'For freeway purposes, the extinguishment of all easements of access in and to the existing State highway road VI Ker 4--D appurtenant * * *.'

The Giumarra Vineyard is separated from highway 99 by the Southern Pacific railroad's right of way; the Giumarra easterly property line is its common boundary with the western property line of the railroad's right of way. The railroad corporation secured its right of way through a Congressional grant in the year 1866.

The easterly boundary of the railroad right of way is the westerly boundary of highway 99. A 60-foot county-road crossing beginning at the westerly boundary of the state highway and extending 221 feet across Southern Pacific's right of way and ending on the northeasterly boundary of Giumarra Vineyards' property afforded Giumarra its only public access to the highway and connecting roads; it was known as the 'Prospero' crossing. This crossing was conveyed to Kern County by the Southern Pacific Company on November 2, 1950, for the construction of a public highway. Giumarra's buildings are located near the crossing on the westerly side of the railroad.

After receiving a letter from the Division of Highways stating that state highway 99 in that area was going to be made a freeway, and, at the suggestion of the highway division, the board of supervisors passed a resolution declaring its intention to close and abandon the Prospero crossing. The Department of Public Works then applied to the Public Utilities Commission to close the crossing and that body authorized its elimination. Thereupon, plaintiff filed the instant complaint in eminent domain as to parcels 10A and 10B.

Giumarra Vineyards' packing shed was located in close proximity to the abandoned county road and is now 7/10ths of a mile from the new access area to the south; the access road runs in a southerly direction from the southern line of the Giumarra property a distance of one and one-half miles to Seventh Standard Road; the point where the access road intersects with Seventh Standard is a mile and a half from the freeway. From the Prospero crossing, which was closed, to the intersection of the freeway and Seventh Standard Road is three miles. Access from the north along highway 99 to Giumarra Vineyards' packing shed has been increased by an additional seven miles. Access from the south to the shed is approximately the same as before.

Giumarra Vineyards remained in the actual possession and had the use of parcel 10B from September 1, 1962, until March 31, 1964.

The pretrial order provided for a preliminary hearing lasting one day to determine whether the defendant had a property right taken by the state through the elimination of the Prospero crossing; the order on that special issue established that Giumarra had an easement of ingress and egress by virtue of parcel 10B, the extinguishment of which entitled Giumarra to just compensation.

Upon the later trial before the jury, as to damages, the value of parcel 10A with its improvements was found to be $1,070, and the severance damages accruing to the remainder of the property was determined to be $102,620.

The court reserved jurisdiction to enter a later order for the payment of any unpaid real property taxes, penalties or assessments upon the real property which had become a lien in favor of Kern County before September 1, 1962. The court awarded interest at the rate of seven percent per annum from September 1, 1962, the date upon which taking by the state was authorized. The portion of the trial before the jury relative to damages was extensive; the reporter's transcript contains approximately 925 pages.

The state urges the following points for reversal:

1) The trial court erroneously held that the extinguishment of access by appellant's taking of parcel 10B entitled Giumarra Vineyards to compensation;

2) The court improperly limited appellant's cross-examination of respondent's valuation witness, Beagle 3) The plaintiff's motion to strike the severance damage testimony of Mr. Kirkorian should have been granted; and

4) The court erred in ruling that appellant was not entitled to offset the value of Giumarra Vineyards' continued possession and use of the Prospero crossing against the interest which appellant was required to pay for obtaining

an early order for immediate possession of parcel 10B. THE GIUMARRA VINEYARDS CORPORATION HAD A RIGHT TO DAMAGES FOR PARCEL 10B.

There is no quarrel on the part of appellant with the amount awarded by the jury for the taking of parcel 10A, consisting of .535 of an acre, which the jury found to be worth the sum of $1,070. Bitter complaint, however, is made of the award by the jury of a very substantial sum for the taking of parcel 10B. That the defendant was actually hurt financially is conceded, but the plaintiff contends that no property right was taken by the state and that, therefore, the People of the State of California are not responsible collectively for any harm done to the defendant.

In this connection, the plaintiff suggests that the principle discussed in People v. Lundy, 238 Cal.App.2d 354, 47 Cal.Rptr. 694, is controlling. In that case, which, incidentally, related to the same proposed freeway with defendants' land situated physically in much the same relationship with the freeway and the railroad as in the present case, this court reversed a judgment which granted compensation to the landowners for the closing of a means of access from their land to highway 99, based wholly on a license by the railroad without the existence of a deed or of a county road. The Lundy opinion correctly said on pages 357--358, 47 Cal.Rptr. on pages 696--697:

'A prerequisite to compensation (in eminent domain) is that a claimant must prove his ownership of an estate or interest in the land being condemned. (Citing cases.)

'No deed or contract with the railroad company gave any easement to the Lundys; neither did any holding of the Public Utilities Commission. And adverse possession may not be urged as the use of the crossings was not adverse, but by permission, and, in any event, title by adverse possession across an active railroad right of way cannot be acquired by individuals. (Citing authorities.)

'* * * eve

'A revocable license is the highest possible legal status characterizing the Lundys' ability to cross Southern Pacific's right of way. Such a license creates no property interest. (Eastman v. Piper, 68 Cal.App. 554, 560, 229 P. 1002.) Licenses, or privileges, which are unenforceable against the fee owner, are not proper subjects of condemnation.'

The present case is readily distinguishable from the Lundy case, supra; in the instant suit, the county road across the railroad right of way utilized a crossing which had been conveyed to Kern County by the Southern Pacific on November 20, 1950, and as a consequence the owners of the presently considered land did obtain a property right for which the state had to pay if it condemned.

In People ex rel. Dept. of Public Works v. Logan, 198 Cal.App.2d 581, 586--587, 17 Cal.Rptr. 674, 676--677, this court discussed the value of the taking of an easement, and said:

'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, 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 access 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). * * *

'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...