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

• Decision Date: 18 August 1965
• Citation: 46 Cal.Rptr. 260,236 Cal.App.2d 604
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Acting by and through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Appellant, v. Mary E. SILVEIRA, Helen Silverira De Borba, formerly Helen Silverira, George Silveira, Joseph Silveira, Anthony Silveira, Carlos Silveira, Jean Silveira, Dolores Silveira Cordiero, formerly Dolores Silveira, Defendants and Respondents. Civ. 22007.

Page 260

46 Cal.Rptr. 260

236 Cal.App.2d 604

PEOPLE of the State of California, Acting by and through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Appellant, v. Mary E. SILVEIRA, Helen Silverira De Borba, formerly Helen Silverira, George Silveira, Joseph Silveira, Anthony Silveira, Carlos Silveira, Jean Silveira, Dolores Silveira Cordiero, formerly Dolores Silveira, Defendants and Respondents.

Civ. 22007.

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

Aug. 18, 1965.

Rehearing Denied Sept. 10, 1965.

Hearing Denied Nov. 10, 1965.

Harry S. Fenton, Chief Counsel, Holloway Jones, Jack M. Howard, Roger Anderson, Norval Fairman, Francis A. McEnaney, William R. Edgar, Attys., Dept. of Public Works, San Francisco, for appellant.

Harold B. Lerner, Raymond H. Shone, San Francisco, for respondents.

SULLIVAN, Presiding Justice.

This is an eminent domain proceeding brought to acquire for freeway purposes certain real property in Marin County owned by defendants. After a jury trial, the court below entered a judgment in condemnation awarding all defendants ¹ (the Silveira family) damages in the sum of $309,080 with interest and defendant George Silveira alone the additional sum of $21,700 with interest. ² The People appeal from said judgment. We discuss infra in our separate consideration of the several questions raised on appeal the facts pertinent to each. At this point we set forth the following background facts.

Defendants are the owners under different tenancies of two separate properties in Marin County. The larger is a 354-acre tract owned by all defendants as tenants in common, known as the Silveira Ranch, and used as a dairy farm. It is bounded on the west by U. S. Highway 101 and on the other three sides by private lands. A railroad runs through this property, dividing it roughly into a westerly section of 260 acres and an easterly section of 94 acres. The parties are in agreement that only the 260-acre portion is material in the present case in connection with the awarding of damages. The second or smaller property here involved is a .6-acre parcel owned by defendant George Silveira alone, apart from his interest in the larger parcel, and upon which he has his residence. George's separately owned land lies entirely within the 260-acre parcel. He also owns a 40-foot wide nonexclusive easement extending from his home across the jointly owned land to U. S. Highway 101.

The larger 260-acre parcel therefore abutted the highway on the west and extended easterly to the railroad. Miller Creek traversed this property in such a way as to leave a 21-acre parcel in the northwest corner separated from the rest of the property. Access from the Silveira land to the highway had been acquired by the state at all points except four designated openings. The area north of Miller Creek had direct acress to U. S. Highway 101 through a 20-foot opening; the area south of Miller Creek had direct access to the highway through two 20-foot openings and one 40-foot opening. George Silveira's easement extended to the last opening. The two northerly 20-foot openings were opposite openings in traffic islands. The property adjacent to the highway was substantially at highway grade except at the most southerly opening. At the point where it met the freeway the property was approximately four-tenths of a mile from the City of San Rafael.

By the instant proceedings, the state is acquiring a 9.304-acre strip, identified as Parcel 5, Amended, fronting the highway and varying in depth from 30 feet at the southerly end to 850 feet at the northerly end. It is also acquiring all four rights of access to the freeway which defendants own as easements appurtenant to their lands but at the same time in the instant proceedings has provided that the remaining lands of defendants not condemned shall abut upon and have access to a certain public road.

The People do not question the sufficiency of the evidence to support the verdicts but contend that the court made certain errors which affected the ability of the jury to arrive at correct determinations of the value of the parcel condemned and the extent of severance damages. We discuss the People's contentions in the order in which they are presented.

Defendants' valuation of the property in its 'before' condition.

Plaintiff contends that the court erred in permitting defendants to offer evidence of the value of the land in its before condition on a speculative theory assuming the possibility of public road connections with the freeway despite the consent requirements of Streets and Highways Code section 100.2 ³ and thus in effect to predicate value and compensation on a privilege rather than a property right. It is urged that the trial court confused the private right of access to the freeway with the privilege of connecting public streets or roads to the freeway. While plaintiff concedes that the taking of the former is subject to payment by the condemnor of just compensation, it argues that such claim for compensation cannot be increased 'by speculating at trial on the exercise of a privilege controlled solely by the severeign condemnor.'

At all material times U. S. Highway 101 was and is a state highway. In 1946, at least in the area here involved, it had been declared a freeway. The record shows and the parties agree that at the time the present action was commenced, all of defendants' access to the highway had been acquired by the state except at the four openings previously mentioned. All access is being acquired by the instant proceedings. In its before condition therefore, defendants owned land with rights of access to the highway at four places.

Defendants offered valuation evidence in support of the theory that the highest and best use to which the subject property was adaptable in its before condition would be two separate subdivisions: one covering the 21-acre parcel in the northwest corner which was separated from the larger part of the property by Miller Creek and the other covering the remaining 239 acres sought of Miller Creek. The first or northerly subdivision would consist of multiple and single-family residences and of property for commercial purposes other than a 'highway strip.' The second or southerly parcel would consist of the following: a 200-foot deep strip fronting the highway and extending southerly from Miller Creek, which would be adaptable for highway commercial purposes; a buffer strip behind it for multiple-family residences; and the remainder for single-family residences. All of defendants' witnesses agreed that their valuation of the land based on the above uses was dependent on the fact that the land had the four separate direct access openings to the highway. ⁴

It was the position of plaintiff in the court below, as it is before us, that such development on the Silveira Ranch of subdivisions connected with the highway through the above openings meant the connection of public streets with the highway and of necessity required the conversion of private access openings into public streets. Since any such connection would be forbidden under section 100.2 without consent of the California Highway Commission, the possibility of obtaining such consent would be too remote and conjectural to support defendants' theory of valuation. Accordingly, plaintiff's valuation evidence was responsive to the theory that the highest and best use of the land did not include a highway commercial strip but a planned community subdivision connected to a public road which would have been probably located along the northern boundary of the ranch as projected by the Marin County Master Plan.

Plaintiff introduced evidence of plans and resolutions of the Marin County Planning Commission and Board of Supervisors and of the State Highway Commission which showed that the only authorized public roadway which would connect the Silveira lands to the freeway would be north of the Silveira property near its boundary with the St. Vincent's property. In addition, plaintiff introduced in evidence a Marin County ordinance establishing minimum widths for streets in order to show that a subdivision connected to a highway at openings only twenty and forty feet wide would not meet legal requirements and would not be feasible. There was other evidence directed to the impracticality of building a subdivision as envisioned with defendants' valuation theory because of the width of the access openings, the safety factors involved, local county regulations and the freeway plans of the Division of Highways. Defendants, on the other hand, offer evidence that such subdivisions with access for the land at four points would have been approved by the Board of Supervisors which apparently had the final decision in the matter, the ordinance as to minimum street widths to the contrary notwithstanding. There was also evidence that the plans placing a connecting public roadway north of the Silveira lands were intended only as a guide.

During the course of defendants' case, plaintiff moved to strike the valuation testimony of defendants' witness Clark in reference to the value of the land in its before condition and to the amount of severance damages on the ground that such opinion was speculative and conjectural because it was based on the assumption that the public streets of the subdivision projected by Clark could be connected with the freeway. The court denied the motion. ⁵

In its instructions on severance damages, the court instructed the jury in words or substance as follows: That they should not consider anything as tending to depreciate market value which was 'uncertain, remote, speculative or imaginary or merely possible'; that at the time of the commencement of the proceedings defendants had a right of access, i. e., a right of ingress and egress, at four specified openings, which was a property right; that defendants' rights of access 'were without legal restrictions as to...