People, By and Through Dept. of Public Works v. Lagiss

• Decision Date: 06 December 1963
• Citation: 223 Cal.App.2d 23,35 Cal.Rptr. 554
• 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, Respondent and Appellant, v. Anthony G. LAGISS, Defendant, Appellant and Respondent. Civ. 20509.

Page 554

35 Cal.Rptr. 554

223 Cal.App.2d 23

The PEOPLE of the State of California, Acting by and through the DEPARTMENT OF PUBLIC WORKS, Plaintiff, Respondent and Appellant, v. Anthony G. LAGISS, Defendant, Appellant and Respondent.

Civ. 20509.

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

Dec. 6, 1963.

Hearing Denied Jan. 29, 1964.

Holloway Jones, Jack M. Howard, Joseph F. DeMartini, Harry C. Miller, San Francisco, Robert E. Reed, Sacramento, of counsel, for plaintiff and appellant.

Harlow P. Rothert, Cushing, Cullinan, Hancock & Rothert, San Francisco, Tinning & DeLap, Robert Eshleman, Martinez, for Anthony G. Lagiss.

MOLINARI, Justice.

This is an appeal by both parties to this litigation from specified portions of the judgment in an eminent domain proceeding. ¹

The Record

The present appeal grows out of an earlier appeal in the instant case decided by this court. ² In order to properly place the appeal now before us in its proper focus it will be necessary to set out a summary of the facts set forth in the previous appeal. These facts give us the background of the case as follows:

After adoption by the California Highway Commission of the resolution of public interest and necessity required by Streets and Highways Code section 102, this action was brought to condemn, for highway purposes, a parcel of land in Contra Costa County belonging to defendant. ³ Defendant answered, denying that the whole of the parcel was needed by plaintiff for highway or any public purpose. Defendant further alleged in his answer, as amended, that the Commission in passing its resolution acted in bad faith and abused its discretion in that it knew or should have known that only a portion of the parcel was needed for any public purpose; that it is apparent from the face of the complaint that only the portion between the highway lines shown on the map was necessary and that there are no plans for or possible use of the remainder of said parcel; that the Commission and the department had no independent knowledge of the public necessity in acquiring all of said parcel and that its acquisition was for the sole purpose of depriving defendant of compensation justly due him, also to harass him, as plaintiff well knew defendant wished to retain that portion of the parcel not needed for public improvement, and to coerce defendant into accepting a sum for the taking substantially less than the fair market value of the land actually needed for the improvement; and that plaintiff determined to take the property for the purpose of harassing defendant in that plaintiff submitted to defendant a stipulation in which plaintiff would acquire only the portion which defendant claimed was needed for the highway provided defendant would waive any rights to severance damage from the taking of only a portion of the larger parcel. These affirmative allegations of the answer were stricken by the court on motion. The cause thereupon proceeded to trial by jury, and on the first day of the trial leave was granted to defendant to file a third amended answer. This answer contains no allegations of fraud, abuse of discretion or bad faith or that the entire parcel was not needed, other than a denial of the allegations of the complaint. The jury returned a verdict for plaintiff wherein it assessed the damages for the taking at $10,000 for the whole of the parcel sought to be condemned. On an appeal from the judgment entered pursuant to said verdict, this court, in People v. Lagiss, reversed the judgment on the basis that defendant should have been permitted to present the defense of fraud, bad faith, abuse of discretion and lack of public purpose. The reviewing court also held that in filing the third amended answer containing no allegations of fraud, abuse of discretion or bad faith defendant did not waive his right to present these defenses in view of the trial court's previous rulings rejecting these defenses. ⁴

On June 16, 1959, the Supreme Court in People v. Chevalier, 52 Cal.2d 299, 340 P.2d 598, held that the question of 'necessity' is not justiciable and disapproved any language in People v. Lagiss and other cases implying a contrary rule. (Pp. 305, 307 of 52 Cal.2d, pp. 601, 603 of 340 P.2d) ⁵ On June 22, 1959, a pretrial conference was had in the instant action. The pretrial order recites that the issues of public use and necessity having been raised, these issues would be heard by the court sitting without a jury at some time prior to the hearing on the issue of valuation wherein a jury trial was requested. It does not appear from the record whether Chevalier was then called to the attention of the court. When the cause came on for retrial on January 19, 1960, the trial court indicated that the questions before it were those of necessity and public use, and while it appears that counsel for both sides acknowledge that these issues were before the court, it also appears that the counsel for plaintiff did, in its opening statement, call the attention of the court to the holding in Chevalier to the effect that the question of necessity is not justiciable and that the sole issue before the court was that of public use. It appears, also, that the trial court at that time agreed with plaintiff's statement in this respect. Moreover, in 'Findings of Fact and Conclusions of Law' ⁶ which the court made and signed on August 2, 1960, the trial court recited therein that the matter came on for trial 'as to the issue of public use.' The record discloses, however, that evidence was taken on the issue of necessity as well as the issue of public use, and that the trial court made findings of fact on both of these issues. The trial court found: that plaintiff was guilty of bad faith and abuse of discretion in submitting to and having the Commission pass a resolution reciting a need for the whole of the said parcel when it knew that only a portion of said parcel was needed for a public purpose; that plaintiff included the whole parcel knowing that defendant wanted to use said unneeded part; that plaintiff did so to coerce and harass defendant into taking less than the fair market value of the property despite plaintiff's knowing that defendant at all times wanted to use a portion of said property and attached substantial value to it, and despite plaintiff's knowing that no public use was intended to be made of said disputed portion, for highway or drainage or other public purpose whatever; and that no public use is being made or was intended to be made of the contested portion. The court, from said findings, concluded: that no public use attached to the contested portion of defendant's property, and directed that the cause proceed to trial for the determination of the remaining issues; and that at the conclusion thereof defendant was entitled to a judgment quieting title to the said disputed portion together with just compensation for all loss sustained.

Thereafter, plaintiff filed a document entitled 'Waiver,' in the court below, reciting that plaintiff was desirous of obviating the expense incident to the retrial of the issue of compensation and that it was therefore waiving its right to claim any value for that portion of defendant's property not to be condemned, and that it was conceding, for purposes of the waiver, that the said remaining property be considered to have suffered total damage. The said 'Waiver' was conditioned upon the issue of compensation being removed by entry of judgment upon the verdict reached by the jury in the first trial. Plaintiff thereupon moved for entry of judgment in accordance with the tenor of said 'Waiver,' which motion was granted after a hearing thereon. The trial court thereupon on April 13, 1961, made and filed its 'Findings of Fact and Conclusions of Law,' ⁷ incorporating by reference its previous 'Findings of Fact and Conclusions of Law' and finding further as follows: that no public use is being made or was intended to be made of other than a portion of the said parcel, which portion it therein particularly described; that only the portion of said parcel thereafter particularly described 'is needed' for State highway purposes; that the taking in condemnation of the said portion is and was necessary for a public use; that pursuant to the verdict of the jury therein the value of the whole of the parcel described in plaintiff's complaint is the sum of $10,000; and that in view of plaintiff's waiver on file conceding that the portion not to be condemned may be considered to have suffered total damage, the court took judicial notice of and found that the portion condemned, being a part of the whole parcel found by the jury to be of the value of $10,000, together with maximum severance damages, cannot exceed the value of the whole of said parcel. The trial court thereupon concluded: that the portion decreed to be taken be condemned in fee absolute for highway purposes; that defendant have judgment in the sum of $10,000 for the property taken and for severance damages as to the portion not taken; that no public use attached to other than the portion of the parcel condemned; and that defendant's title to the portion not condemned be quieted. Judgment pursuant to said 'Findings of Fact and Conclusions of Law' was thereupon entered. Each of the parties has appealed from a portion of the judgment: plaintiff, from that portion which fails to adjudge condemnation of the whole of the parcel and that portion which quiets title to the portion refused condemnation; defendant, from the portion thereof awarding compensation.

The Issue of Public Necessity

As we have hereinbefore indicated, People v. Chevalier, supra, 52 Cal.2d 299, 340 P.2d 598, unequivocally holds that the issue of necessity is not justiciable. The Supreme Court there noted that the only limitations placed upon the right of eminent domain by the California Constitution (art. I, § 14), and the United States Constitution (Fourteenth...