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

• Decision Date: 15 August 1963
• Citation: 219 Cal.App.2d 368,33 Cal.Rptr. 189
• Parties: The PEOPLE of the state of California, Acting by and through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. John LILLARD, also known as John E. Lillard, Mary A. Hunt Boyer, also known as Mary Hunt Boyer, and Mary Hunt Boyer and Crocker-Anglo National Bank, a national banking association, etc., as Trustees, ect., Appellants, Frederick C. Hamel et al., Defendants. Civ. 10273.
• Court: California Court of Appeals Court of Appeals

Page 189

33 Cal.Rptr. 189

219 Cal.App.2d 368

The PEOPLE of the state of California, Acting by and through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. John LILLARD, also known as John E. Lillard, Mary A. Hunt Boyer, also known as Mary Hunt Boyer, and Mary Hunt Boyer and Crocker-Anglo National Bank, a national banking association, etc., as Trustees, ect., Appellants Frederick C. Hamel et al., Defendants.

Civ. 10273.

District Court of Appeal, Third District, California.

Aug. 15, 1963.

Desmond & Miller, and John M. Welsh, Sacramento, for appellants.

Holloway Jones, Jack M. Howard, Joseph F. DeMartini, Roger Anderson, San Francisco, for respondent.

PIERCE, Presiding Justice.

Defendants, dissatisfied with a jury award in condemnation, appeal.

They are the owners of 300-odd acres of farm land adjoining U. S. Highway 40 (Sacramento to San Francisco) on the south. Their place (hereinafter 'the Lillard' place or property) is located approximately one-half mile east of Richards Boulevard, described as the 'feeder' street from the highway into Davis.

Prior to October, 1958 the portion of U. S. 40 involved was a 4-lane limited access freeway. Commencing on that date it was being converted into a 6-lane freeway with no access except at designated interchanges.

In the 'before' condition, along the 3900 feet of highway frontage the Lillard property had access to the highway at three locations where vehicles could enter the eastbound lane of travel, one 30 feet in width located at the northwest corner and shared with the neighbors on the west, the second located 1500 feet to the east, also 30 feet wide. In addition, the Lillard property's east boundary is County Road 103 and access to the highway was provided at the northeast corner of the property where this county road intersected the highway. The 4-lane freeway was divided by a strip separating the eastbound and westbound lanes. At the two easterly accesses vehicles could cross the highway and join the westbound traffic. The state, however, had the right to close the median strip to travel, preventing this. The Lillard property was 3 2/1-4 feet below the elevation of the highway. It was county-zoned 'agricultural' but the property adjoining to the west is zoned 'commercial' to a depth of 400 feet from the highway.

The purpose of the condemnation proceeding was to acquire a strip along the north boundary of defendants' farm, comprising 15.51 acres, to widen the highway and provide a frontage road. This 15.51 acres is unimproved except for farm fences and 2 highway signs.

Also condemned was the right of direct access to the new freeway which, when completed, would be fenced off. Instead a frontage road paralleling the freeway was being provided. It would extend from an interchange at Richards Boulevard on the west to (and beyond) an interchange on the east at county road 104. This interchange is approximately a mile to the east of the northeast corner of the Lillard property. Both these interchanges are so designed that access to the freeway can be had for both eastbound and westbound travel, also for travel across the highway and (at the westerly interchange) into Davis via Richards Boulevard; also (at the easterly interchange) above the Southern Pacific Company tracks and then either northerly along said county road 104 or easterly and westerly along county road 32 which parallels the railroad tracks. (Traveling westerly, this road also runs into the City of Davis.)

Defendants' appraiser, the late Mahlon Small, fixed the market value of the 15.51 acres of land being taken at $85,300 ($5,500 per acre) and the severance damages to the remainder at $61,550, a total of $146,850. He reached the severance damages through the process of depreciating 19.24 acres adjoining the condemned land on the south from its asserted 'before' commercial value ($5,500 per acre) to its asserted 'after' value for residential purposes ($2,300 per acre).

Two other witnesses testified as experts for defendants. One John B. Simmons, a Davis real estate broker, valued the part taken at from $5,000-$5,500 per acre; the other, Don Miller, placed the value as being 'in the vicinity of $5,000 an acre.' Neither testified to any sum for severance damages. (Simmons wasn't asked and Miller disclaimed his qualification to fix the amount of severance damages, although testifying there would be some.)

The jury awarded defendants $24,816. This was exclusively for the acreage taken. Nothing was awarded for severance damages. In fact the jury's finding was that special benefits to the part not taken were $32,000.

In making this award the jury obviously accepted the theory of the state's appraisers which may be summarized as follows: that the growth of the City of Davis had been in the past to the northwest, expansion southerly and southeasterly having been interfered with by the Southern Pacific Railroad tracks and by the heavy flow of traffic on U.S. 40 paralleling it. With the creation of the two interchanges at Richards Boulevard and county road 104 and construction of the frontage road, these 'barriers,' the appraisers said, would be overcome and a new metropolitan growth in this southeasterly direction was to be expected. The highest and best use in the 'before' condition was stated to be agricultural but with the knowledge that highway change described above was coming there was 'a higher and more speculative use' particularly with regard to the 400-foot frontage along the new frontage road. The value of the land taken as fixed by the jury was the highest of the three state appraisals (that of Burle Howell) and the jury also accepted his estimate of special benefits.

Substantial evidence supported the award and defendants do not contend otherwise. Their ground of appeal expressed with most fervor and vehemence is an asserted prejudicial misconduct by the trial judge.

Our study of this contention has involved a painstaking review of a transcript of four volumes (904 pages). It has frequently been observed that a trial judge's remarks taken out of context can assume a meaning or import neither intended nor justified when read in context. (See e. g., Martin v. Pacific Gas & Elec. Co., 204 Cal.App.2d 316, 324, 22 Cal.Rptr. 291; hearing by Supreme Court denied.) The observation is appropriate here.

The statements of the court to which defendants take exception came during the cross-examination of one of the state's appraisers. The court interrupted to ask Mr. Miller, attorney for defendant, whether the defense contended there would have been a 'steady strip of commercials on the freeway' but for its conversion into a non-access freeway. Counsel replied that such was his contention. In a discussion between the court and the attorney which followed, reference was made by the latter to two establishments on U. S. 40, The Nut Tree and the Milk Farm, with direct highway access. The following colloquy then occurred: 'COURT: When he goes to come out of there, he can only go one way when he gets out. The same direction as he was going, doesn't he? If he was going east on there, and the commercial is on his side of the highway, he has to continue to go east. MILLER: This is in the before condition? COURT: I am talking about--MILLER: If he goes east, he still continues to go east. COURT: That's right. Suppose he is going to a football game and he or his wife forgot their tickets. That's one instance. He has to go back and get them, but he has to go on until he can get back in the opposite direction. A frontage road isn't a one way road, is it? MILLER: No. COURT: He can go either way. It is a benefit to both. Secondly, I can see this situation. He can always get in there very easily, but if there is heavy traffic like in some parts of the State of California where cars come bumper to bumper, when he goes to come out of that access, he could be able to save time by going down his frontage roads to another place where he could get back onto the highway. The people travelling down the main road have the right-of-way? MILLER: You asked me, and I would say you made a conclusive closing argument on behalf of the plaintiff that such is a benefit, and the jury will listen to the court, and so we are stuck with benefits, but I will answer with this fact--that it is very harmful to Mr. Lillard. * * *'

We do not read into the court's statements the meaning which defense counsel's lastquoted remark gives to them. To us the judge was saying that a motorist attempting to reenter a direct access freeway was at a disadvantage in having to await an opportunity if traffic is heavy; also disadvantaged by having to travel in one direction until an opening in the median dividing strip permits a U-turn. The frontage road--with interchange-type of freeway, he stated, permits travel in both directions. Thus construed, what he says is a truism. It expresses merely an advantage to a through-traveling motorist which no defense witness did, could, or would gainsay. On the question at issue, i. e., whether the value of the remainder of the Lillard property was damaged or specially benefited by the freeway conversion, the court expressed no opinion. Defendants' counsel in interpreting the court's statement as an opinion of special benefit to the lands does so with an over-sensitive ear.

The judge is obligated to conduct the trial in a fair and impartial manner. (Etzel v. Rosenbloom, 83 Cal.App.2d 758, 189 P.2d 848.) He may not, of course, choose sides. His function, however, is much more than that of a plate umpire at a baseball game calling balls and strikes. (People v. Golsh, 63 Cal.App. 609, 614-615, 219 P. 456.) In People v. Rigney, 55 Cal.2d 236 on page 241, 10 Cal.Rptr. 625, 627, 359 P.2d 23, the court quoting an earlier case (People v. Corrigan, 48 Cal.2d 551, 559, 310 P.2d 953) said: 'Indeed, 'it is the right and duty of a judge to conduct a trial in such a manner that the truth will be...