People By and Through Department of Public Works v. Murray
| Citation | 172 Cal.App.2d 219,342 P.2d 485 |
| Decision Date | 22 July 1959 |
| Docket Number | No. 18337,18337 |
| Court | California Court of Appeals |
| Parties | PEOPLE of State of California, acting by and through DEPARTMENT OF PUBLIC WORKS, Plaintiff and Repondent, v. William P. MURRAY et al., Defendants. H. Koch & Sons, Defendant and Appellant. |
Morris M. Grupp, San Francisco, for appellant.
Robert E. Reed, Holloway Jones, Jack M. Howard, Norris J. Burke, Roger Anderson, Robert S. Webber, San Francisco, for respondent.
This action was brought by the state, through its Department of Public Works, to condemn 12.826 acres of land, owned by the appellant, H. Koch & Sons. The land abuts Highway 101 in Marin County. The jury fixed the value of the condemned parcel at $69,000 and found severance damages in the amount of $5,000. This appeal is concerned only with the severance damages. According to the appellant-property owner, the severance damages are grossly inadequate because of errors in evidentiary rulings and instructions. The respondent maintains that the rulings and instructions were correct, and in any event not prejudicial.
The facts are as follows: The appellant owned approximately 62 acres of land located in the City of Corte Madera. A portion of the property abuts the east side of Highway 101 between the Corte Madera Wye and the Alto Wye for a distance of 4,300 feet. Appellant acquired the entire property in 1953 for $67,000. The northern section (approximately 24 acres) of the property consisted of marsh land and the southern section (approximately 38 acres) of hill land. Between 1953-1955, appellant had taken some fill from the hill area and placed it on the marsh land area. In the northwest corner of the property, fronting along Highway 101, appellant had developed a factory building, which with its parking area and roadway occupied about four acres of the total property. The remaining 58 acres were unimproved, vacant land.
The property acquired in this action was a 40 foot wide, 4,300 foot long, strip abutting Highway 101 consisting entirely of slope area off the highway. The northern portion of the strip (about 2700 feet) was downslope ranging from 3 feet [172 Cal.App.2d 224] to 56.5 feet below the grade of the existing highway down to the level marsh land area; the southern portion was upslope, rising sharply above the the highway. Of the 12.826 acres acquired by the state, 4.489 was a slope easement already owned by the state. The state also acquired all direct highway access of the appellant's property to Highway 101.
In the before-situation, the only developed access from the appellant's property to the highway was an entrance way in front of the factory. In the before-situation, the property had direct legal access to Highway 101, only for northbound traffic which entered directly from Highway 101 at the above mentioned entrance way. The southbound traffic, however, was prevented from direct access to the property by the dividing barrier down the middle of Highway 101 and had to undertake a circuitous route (for about 2 1/2 miles past the entrance way south, then a U-turn at Alto Wye) in order to enter the northbound lanes of the highway. In leaving the property southbound traffic had to drive north to the Corte Madera Wye and then make a U-turn into the southbound lanes of the highway.
In the after-situations, a paved road was provided as part of the improvement to the northern boundary of the property from a freeway overpass located approximately one-half mile north of the property at the Corte Madera Wye. In the after-situation, the northbound traffic travels an additional one-half mile north to the overpass at the Corte Madera Wye, and returns to the property by the frontage road. The overpass eliminated the necessity of a U-turn for the southbound traffic. The driveway into the factory building was paved out to the existing pavement of Highway 101 under an encroachment permit for the payed area over the shoulder of Highway 101, within the state's existing right of way. The state's expert witnesses testified that because of traffic patterns the access was considerably improved in the after-situation, even though to other means of access existed in the after-situation. 1 Appellant's witnesses testified that the area acquired by the state was developed for the purpose of providing access roads from Highway 101 to the main body of the property. One of appellant's witnesses testified that the slopes could be developed for a service station site if the land were filled in to make it level with the highway.
One of the major issues is whether the trial court erroneously instructed the jury as to the extent of appellant's right of access. The general rule, as stated in Genazzi v. County of Marin, 88 Cal.App. 545, at page 547, 263 P. 825, at page 826 is as follows:
Rose v. State of California, 19 Cal.2d 713, at page 728, 123 P.2d 505, at page 514, states that the right of access is the right to 'customary or reasonable' access. In Bacich v. Board of Control, 23 Cal.2d 343, at page 352, 144 P.2d 818, at page 824, the court pointed out that the 'easement of access may be said to be that which is reasonably required giving consideration to all the purposes to which the property is adapted.' Certain witnesses testified that at certain points along the highway access fro the appellant's property would constitute a hazardous entry to the heavy traffic. It is well established that the state may regulate or control such entries if they should prove to be unsafe, and that the police power may even extend to the limitation of a property right if the interest of the general public warrants such action. Holman v. State of California, 97 Cal.App.2d 237, 217 P.2d 448; People v. Sayig, 101 Cal.App.2d 890, 226 P.2d 702; Holloway v. Purcell, 35 Cal.2d 220, 217 P.2d 665.
The jury was instructed on this matter as follows:
'Before these proceedings were commenced, defendant H. Koch & Sons owned the property herein involved facing and adjacent to the easterly side of Highway 101, which ran along said Highway 101 for approximately 4,000 feet. The owners of property facing on property such as Highway 101 have the right of access to and from that highway and have the right to receive light and air from that highway. This right of access is a right to come onto and to leave that property via the highway, and is often referred to as a right of ingress and egress. Ingress means coming into or entering a piece of property. Egress means leaving or departing from a piece of property. This right of ingress and egress includes the right to have vehicles come from the highway into the property and from the property to the highway, and the right to have pedestrians who are passing the property on foot, or alighting from public or private means of conveyance, using the highway, enter and leave the same. These rights are property rights and belong to the property owners, and if these rights are destroyed or impaired for the benefit of the public, that is a damage for which the property owner is entitled to be reimbursed. It is one element of what is legally called severance damages.
'An abutting owner has the right to a free and convenient use of and access to the highway on which his property abuts. This right of ingress and egress attaches to the land and is a right of property as fully as is the land itself, and any act by which that easement is destroyed or substantially impaired, for the benefit of the public, is a damage to the land itself within the meaning of the Constitutional provision under which the owner is entitled to compensation.
'Although owners of real property abutting upon an existing highway have as an easement or appurtenance to such property the right of access to and from the highway, this does not mean that an owner of abutting property is entitled, as against the public, to access at all points in the boundary between the land and the highway.
'Such owner is entitled only to reasonable and convenient access to his property, considering all the uses to which the property is adapted and available.
'This right of ingress and egress that I have described extends to a use of the street or highway by such means of conveyance and travel as are appropriate to that particular highway and in such a manner as is reasonable and customary.
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'When the right of ingress and egress is taken, or is destroyed or impaired, the damage resulting is called 'severance damage.' It is not the only element that is called severance damage, but is included under the hearing of severance damage.
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'In determining the amount of severance damage, if any, you may take into account such factors, if you find from the evidence such factors exist, as alteration or reduction in size of the remaining land, of severance of remaining land into an irregularly shaped piece or parcel, or reduction of particularly zoned portion of the property...
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