People By and Through Dept. of Public Works v. PrincessPark Estates, Inc.

• Decision Date: 21 March 1969
• Citation: 76 Cal.Rptr. 120,270 Cal.App.2d 876
• Parties: The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff, Respondent and Appellant, v. PRINCESS PARK ESTATES, INC., Defendant, Appellant and Respondent. Civ. 32382.
• Court: California Court of Appeals Court of Appeals

Page 120

76 Cal.Rptr. 120

270 Cal.App.2d 876

The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff, Respondent and Appellant, v. PRINCESS PARK ESTATES, INC., Defendant, Appellant and Respondent.

Civ. 32382.

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

March 21, 1969.

Rehearing Denied April 21, 1969.

Hansen & Dolle, Hodge L. Dolle, Hodge L. Dolle, Jr., and Warren K. Peterson, Los Angeles, for appellant and respondent.

Harry S. Fenton, Chief Counsel, R. B. Pegram, Deputy Chief Counsel, Richard L. Franck, William H. Peterson, Richard J. Lopez and Robert W. Vidor, Los Angeles, for respondent and appellant.

FOURT, Acting President Justice.

The parties in this eminent domain action have filed separate appeals from a judgment rendered pursuant to jury verdict awarding Princess Park Estates, Inc., (hereinafter sometimes referred to as either Princess Park or the defendant) the net sum of $407,581.25 for the taking by the State of California (hereinafter sometimes referred to as the State) of 57.73 acres of real property for freeway construction purposes. The State appeals from the judgment on the issue of valuation of the part taken only and Princess Park appeals only as to the issue of severance damages. Pursuant to stipulation and order of the appellate court the separate appeals have been consolidated.

The State contends that the jury was improperly instructed as to the method of determining from the evidence the valuation to be attributed to the parcel taken as a part of a larger tract owned by the defendant. Princess Park contends, as to the measure of severance damages, that the court improperly excluded certain evidence purportedly offered to show that the southeasterly triangle of property remaining after the freeway bisection of the original acreage would not be presently economically feasible to subdivide and develop. These contentions are without merit.

On or about August 14, 1964, Princess Park purchased for an overall price of $5,500 per acre a tract of 368.341 net acres of raw and undeveloped hillside land in the Newhall-Saugus area. The subject acreage is situated some 30 miles northwest of the Los Angeles civic center with access and frontage on an existing three-lane highway commonly known as the Sierra Highway. On July 19, 1965, hereinafter referred to as the date of value or condition, the State commenced this action to acquire approximately 57 acres of defendant's property for the proposed construction of a portion of State Highway Route 14, commonly referred to as the Antelope Valley Freeway.

The topography of the acreage originally purchased and owned by defendant was irregular, ranging from level areas fronting on the Sierra Highway at the northwesterly boundary to precipitous areas of increasing steepness in proportion to their distance from the highway. The part taken was a swath running in a northeasterly direction, commencing from the rear or southernmost boundary of the larger parcel and ending at the easterly boundary line of said parcel, and its boundaries are irregular due to the nature of the terrain and the need for large cuts and fills in the proposed construction. The larger parcel also includes about 56 acres of an unstable, geologically ancient landslide with an estimated average depth of 35 feet, and of this area 12.1 acres were within the parcel taken for the freeway, while 7.2 acres were in the northwesterly parcel and 38.6 acres were situated in the severed triangle remaining southeasterly of the freeway. Almost 25% Of the part taken was within the slide area.

Prior to the date of value or condition, tentative subdivision Tract No. 30008, containing six proposed units, had been filed with the Los Angeles County Planning Commission covering the 368 acres. Only Unit 1 and Unit 2 had received final approval, pending final determination of the exact alignment of the proposed freeway right-of-way and the land in proposed Units 3, 4, 5 and 6 remained in an undeveloped condition. However, following purchase and prior to the date of value, defendant had expended well over $2 million in improving portions of the larger parcel, grading and installing storm drain, streets, water lines and sewer systems in the northwesterly portion of the tract so that Unit 1 residential development was approximately 90% Complete and some work had been done on Unit 2.

The State contends on appeal that the court erred in giving certain instructions requested by defendant, and in failing to given an instruction submitted by the State in lieu of those complained of. The State claims initially that the court erred in giving Instruction No. 9 which states: "When the condemnor does not take the whole, but takes only a part of the tract of land owned by the landowner, then you must determine the market value of the part taken according to the following method:

'You must determine whether it has a greater value considered as a separate and distinct piece of property disconnected from the remainder of the tract, or whether the part taken has a greater value considered as a fraction or part of the entire tract. You must then select from these two valuation methods whichever one of the two produces the higher and greater market value, and make your awards accordingly. The landowner is entitled to the highest value."

There is no suggestion that this instruction fails to embody a correct statement of the law, and indeed it was taken almost verbatim from instructions approved in an earlier case. (People ex rel. Dept. Pub. Wks. v. Silveira, 236 Cal.App.2d 604, 616, fn. 15, 46 Cal.Rptr. 260.) 'By directing the jury to select from the two valuation methods therein referred to the one producing the higher value, the instruction represents a correct statement of the measure of damages in terms of market value, 'that is to say, the Highest price estimated in terms of money which the land would bring if exposed for sale in the open market, with reasonable time allowed in which to find a purchaser, buying with knowledge of all of the uses and purposes to which it was adapted and for which it was capable.' (Citations.)' (People v. Silveira, Supra, p. 620, 46 Cal.Rptr. p. 272.) The State, however, contends that there was evidence in the Silveira case that valuation witnesses for the condemnees valued the part taken as a separate and distinct parcel of property, and that the instruction has no application in the present case and is improper where the alternatives in which the jury is instructed are not each supported by the evidence, since the instruction may then tend to mislead or confuse the jury. The defendant's appraisal witnesses in the present case clearly valued the parcel taken only as a part of the whole. The State's appraisal witnesses, on the contrary, divided the whole parcel into zones to which differing values were applied according to topography and then determined the zone or zones within which the parcel taken was situated in order to compute the value of the condemned acreage. The Princess Park witnesses valued the property taken at $9,000 per acre or more, while calculations of the State's witnesses resulted in a value of about $3,000 per acre for the same parcel. The jury awarded Princess Park $358,581.25 or approximately $6,500 per acre. While it cannot be told from the verdict precisely how the jury calculated the value of the property taken, it is apparent from the testimony adduced at the trial and it is unanimously conceded by the parties and their witnesses that the value of the parcel taken considered as an isolated fraction was not higher, but was in fact substantially less than, its value as a portion of the whole. Therefore, since the jury is required by Instruction No. 9 to consider only that alternative which would give the landowner the highest value, any evidence of the value of the parcel taken as a separate and distinct piece of property is removed from the jury's consideration. It cannot be said that the instruction misled or confused the jury which was left only the single alternative of valuing the property as a part of the whole.

The State further contends that the court in giving Instruction No. 13 ¹ immediately following Instruction No. 9 incorrectly directed the jury not that they might apply alternative valuation methods, but that they must use the second method stated in Instruction No. 9, that of valuing the parcel taken as part of the whole, and claims that these two instructions are flatly contradictory. Whatever superficial disagreement may appear between these instructions, it is clear that under the evidence adduced in the present case only the second alternative allowed by Instruction No. 9 was applicable. It cannot, therefore, be said that Instruction No. 13 was '* * * conflicting and prejudicial, because it cannot be ascertained upon what theory the verdict was returned.' (Starr v. Los Angeles Ry. Corp., 187 Cal. 270, 280, 201 P. 599, 603; Noce v. United Railroads, 53 Cal.App. 512, 518--519, 200 P. 819.) Nor is the State entitled to a new trial (Brignoli v. Seaboard Transportation Co., 29 Cal.2d 782, 178 P.2d 445; McDonald v. City of Oakland, 255 Cal.App.2d 816, 63 Cal.Rptr. 593) because this was not a situation in which the alleged...