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

• Decision Date: 14 March 1966
• Citation: 50 Cal.Rptr. 95,240 Cal.App.2d 716
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. Robert WASSERMAN and Market Wholesale Grocery Co., Defendants and Appellants. Civ. 22549.

Page 95

50 Cal.Rptr. 95

240 Cal.App.2d 716

The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. Robert WASSERMAN and Market Wholesale Grocery Co., Defendants and Appellants.

Civ. 22549.

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

March 14, 1966.

As Modified on Denial of Rehearing April 11, 1966.

Hearing Denied May 11, 1966.

M. H. Barker, Thomas G. Baggot, Los Angeles, for appellants.

Harry S. Fenton, Chief Counsel, Sacramento, Department of Public Works, Holloway Jones, Deputy Chief Counsel, Jack M. Howard, William R. Edgar, Richard S. Levenberg, Dept. of Public Works, San Francisco, for respondent.

SULLIVAN, Presiding Justice.

This is an eminent domain proceeding brought to acquire for state highway purposes certain real property in Sonoma County just outside the city limits of Santa Rosa. The property condemned (Parcel 1) is a portion of a larger parcel owned by defendant Robert Wasserman and under lease to his codefendant Market Wholesale Grocery Co. (Market). After a jury trial, the court below entered a judgment in condemnation awarding all defendants as their interests may appear ¹ damages in the sum of $5,750 with interest. ² Wasserman and Market appeal from the judgment. In our separate consideration of the several questions raised on appeal, we discuss infra the facts pertinent to each. At this point we set forth the general factual background.

In the main, there is no dispute about the facts. Wasserman is the owner of certain property located just west of the Santa Rosa city limits and consisting of 54,380 square feet. It is leased ³ to Market which conducts a wholesale grocery business thereon. There was testimony that the property had been similarly used since at least 1937 and that the highest and best use of the property in its before condition was for a wholesale grocery company.

The property is improved with a large warehouse containing offices. Alongside the structure is a paved yard used by Market for the parking and maneuvering of trucks in connection with its business. In its actual operation Market's business involves the receipt of merchandise brought in by various truckers or picked up by Market itself, the internal handling of the same and its eventual distribution to grocers in the area. In short, Market takes merchandise in and ships it out. The operation of the business consists almost entirely of pick-ups and deliveries by large trucks and trailers. From this warehouse Market services an area extending as far north as Fort Bragg, east to Vallejo and Napa and south to Marin County, Oakland and San Jose.

The subject property is bounded on the north by Holbrook Street and on the east by Roberts Avenue. Iowa Street intersects Holbrook from the north immediately across from the property and Decoe Street similarly intersects ⁴ Holbrook approximately 100 feet to the west of the western boundary of the property. Prior to the construction of the freeway for which Parcel 1 was taken, Iowa and Decoe Streets and Roberts Avenue were all through streets to the north by means of which defendants' property had access to the general system of streets in Santa Rosa and the vicinity. The freeway, designated as Highway 12, runs in a general easterly and westerly direction just north of defendants' property, thereby cutting across all of the aforementioned three streets. After the construction of the freeway, therefore, these three streets were closed south of the freeway, ⁵ thus abolishing direct access from defendants' property to any point north. Thus, before construction of the freeway, the shortest and most direct route to the central business section of Santa Rosa was north via Iowa Street or Roberts Avenue to West 3rd Street and then east along West 3rd. The alternate route, the one defendant Market and all its customers are now compelled to take, is south on Roberts Avenue, east on Sebastopol, then north on Olive and Railroad Streets to West 3rd and then east on West 3rd. This latter route is longer by approximately a third of a mile, involves heavy traffic on Sebastopol Avenue and requires a difficult left-hand turn from Roberts to proceed east on Sebastopol.

Condemnation was sought as to Parcel 1, a boomerang-shaped parcel at the northern tip of the property with an area of 3,960 square feet. The freeway itself was not to be built on any part of the land taken but, as previously noted, was to be located just north of it. The record shows that the part taken was being acquired not for the construction of the freeway proper but to 'curve out' the intersection of Holbrook and Roberts so as to facilitate turning in that intersection. This was deemed necessary by plaintiff's engineers since the freeway, by cutting across an angle of the intersection, would narrow it.

Defendants called two valuation witnesses, Carl Goslovich, vice-president, general manager and a stockholder of Market and Clifton McCluskey, a Santa Rosa realtor and appraiser. Goslovich testified that the fair market value of the parcel taken was $3,564 and that the severance damages to the remainder of the property were $94,390. McCluskey testified that the value of the part taken was $4,000 and that the severance damages were $51,500. Each witness based his opinion as to severance damages on two factors: (1) damage to the property because of the closing of all of the aforementioned streets with the resultant loss of direct access thereby to the general system of streets; and (2) damage to the property because of the loss of a parking and maneuvering area for large trucks and trailers picking up merchandise at, and delivering it to, Market's warehouse. The trial judge ruled that the alleged loss of access embraced within the first factor was noncompensable and that any evidence bearing thereon was inadmissible in the case. As a result of this ruling and the elimination of such factor of damage from the opinion as to severance damages, Goslovich's opinion was reduced by $10,000 to $84,390 and McCluskey's opinion was reduced by 50 per cent to $25,750.

In rebuttal plaintiff presented two valuation witnesses: Hal Bolla, Jr., a local real estate appraiser and Michell N. Abramson, a Santa Rosa realtor and appraiser. Bolla testified that the fair market value of the taken Parcel 1 was $1,600 and that there were severance damages in the amount of $3,100 to the remaining property. Abramson opined that the fair market value was $2,000 while concluding that there were no severance damages. His basis for this latter opinion was that in the after condition the general situation of the property would be very similar to what it had been prior to the taking; the existing conditions would not really be changed. Both witnesses testified that not only would the closing of streets not create any parking problems, it would really not at all affect the preconstruction parking situation. In fact, Abramson testified that as a result of the street closings the property in general would be 'greatly improved' and specifically that the parking would be improved. ⁶

In addition to Bolla and Abramson, plaintiff called three other witnesses on the question of severance damages: Philip Day, a trucking executive, John G. McClone, a traffic engineer for the Sonoma County Road Commissioner and Edwin R. Parks, an industrial engineer. Each of these men had apparently compared the before and after condition of the remaining property in regard to the problem of parking; each expressed the opinion that the operation of defendants' business would not be that curtailed or adversely affected by the taking and the resultant street closings. Specifically, Day testified that the taking would not create any parking problems; McClone testified that there were no county plans extant at that time to restrict or prohibit parking, even in light of the present proposal to close streets in the manner proposed by the plans; Parks testified that by proper utilization of the shoulders of the public streets the parking situation in the after condition would be equally as good as in the before condition.

Impairment of access.

Defendants contend on appeal that the court erred in ruling that their easement of access was not substantially impaired. This ruling was the culmination of extensive proceedings had outside the jury's presence during the testimony of defendants' valuation witness Goslovich. In the course of these proceedings the learned trial judge concluded on the authority of People ex rel. Dept. of Public Works v. Symons (1960) 54 Cal.2d 855, 9 Cal.Rptr. 363, 357 P.2d 451 and County Sanitation Dist. No. 2 v. Averill (1935) 8 Cal.App.2d 556, 47 P.2d 786, cited therein, that damages for the impairment or diminution of an easement of access were not recoverable where, as in the instant case, they were caused by the construction, maintenance or operation of improvements made on the lands of others. The court's reasoning was that the closing of Iowa and Decoe Streets and of Roberts Avenue resulted from 'the construction of the freeway proper' which, as we have said, was north of defendants' property and that damage resulting therefrom had 'nothing to do whatsoever' with the condemnation of the corner of defendants' property. While seemingly not disclaiming the benefit of such ruling, counsel for plaintiff took the position during the above proceedings that the next intersecting street rule announced in Bacich v. Board of Control (1943) 23 Cal.2d 343, 144 P.2d 818, was also applicable and that under such rule no impairment of access could occur since defendants' right of access extended in both directions to the next intersecting street, his theory being that after the construction of the freeway there would still be access westward along Holbrook Street to the intersecting Iowa and Decoe Streets even though these latter streets would be blocked by the freeway. ⁷ While...