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

• Citation: 248 Cal.App.2d 741,57 Cal.Rptr. 293
• Court: California Court of Appeals
• Decision Date: 27 February 1967
• Parties: The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Appellant, v. Michael DiTOMASO, Pauline DiTomaso and the County of Santa Clara, Defendants and Respondents. Civ. 22770.

Page 293

57 Cal.Rptr. 293

248 Cal.App.2d 741

The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Appellant, v. Michael DiTOMASO, Pauline DiTomaso and the County of Santa Clara, Defendants and Respondents.

Civ. 22770.

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

Feb. 27, 1967.

Harry S. Fenton, Holloway Jones, Jack M. Howard, Lee Tyler, William R. Edgar, San Francisco, for appellant.

Marlais & Hover, San Jose, for respondents.

SIMS, Justice.

The state, as condemnor, has appealed from a judgment which awarded the defendant property owners $55,000. This judgment ensued from a jury trial which resulted in a verdict that the fair market value of the property taken was $35,000, that the owners suffered $20,000 damages to the remainder of their property by reason of the severance and the construction of the improvement in the manner proposed and that there were no special benefits accruing to the remainder of the property by reason of such construction.

The gravamen of the condemnor's complaint is that the owners, despite objections thereto, were permitted to exploit unwarrantedly an alleged loss of promised access to the property, and that the errors in this regard resulted in excessive damages. The People further assert that error was committed in permitting one of the owners to testify in regard to the amount he was paying for substituted rental property.

An examination of the entire record fails to reflect any prejudicial error in the rulings of the trial court with respect to the matters of which complaint is made and the judgment should be affirmed.

The Facts

The property in question is located south of the city limits of the City of San Jose near the gore formed by the intersection of Monterey Road, the principal artery from San Jose south to Gilroy, and the Bayshore Freeway, which at that point rejoins the former highway after by-passing the city. The property prior to 1958, had a frontage of approximately 390 feet along the northerly side of Monterey Road. It extended and extends northerly in the form of a boomerang, with a bend westerly. Subject to some irregularities in the perimeter, the southerly portion, abutting on Monterey Road, was roughly of a uniform width of 390 feet and extended northerly approximately 1,340 feet on its long, or easterly, side, and about 975 feet on the westerly side. The northerly portion was and is approximately 410 feet in width and had commensurate side dimensions of about 975 feet on the east, and 995 feet on the west.

Up until the time the condemnor took possession in the present proceedings the property was improved by a house and garage and other appurtenant structures. It was planted to orchard and used for agricultural purposes.

Cottle Road, a county highway, intersects Monterey Road from the south. A projection of the center line of Cottle Road, as it was realigned in 1958, would intersect the subject property at a point about three-quarters of its width as measured from west to east. Prior to 1958 the owners' ten-foot wide driveway entered the northerly side of Monterey Road at a point approximately opposite the corner formed by the intersection of the easterly side of the realigned Cottle Road and the southerly side of Monterey Road.

In that year, in connection with the improvement of Monterey Road and Cottle Road, plans were made to channel the traffic in and out of Cottle Road on the south side of Monterey Road, and to control the intersection with signal lights. The State Department of Public Works secured a 'Permit to Enter' ¹ from the property owners so that it could place on their property a triangular base and traffic signal opposite the westerly side of Cottle Road, and a concrete curved curb opposite the easterly side of Cottle Road. The curb was to be erected over the site of the existing driveway. In return the state agreed to realign approximately 100 feet of the property owners' driveway so that it would enter Monterey Road between the triangular signal base and the new curb. The driveway was designed to fan out to the complete width of almost 50 feet between the foregoing structures as it met the shoulder of the highway. All of this planned work was completed.

To meet the needs of further development, plans were made to widen Monterey Road and to construct a new connecting road from the intersection of Monterey Road and Cottle Road to the area which lies northeast of the intersection of Bayshore Freeway and Montery Road and is served by Ford Road. This road would also accommodate traffic southbound on Bayshore Freeway which leaves that highway to go westerly on Monterey Road. The connecting road was planned to take off northerly from Monterey Road directly opposite the Cottle Road intersection and immediately curve to the east. For the widening and for the construction of this road, as originally planned, it was necessary to acquire .908 of an acre of the DiTomasos' property.

On February 9, 1960, while a condemnation action was pending, the owners entered into a right of way contract with the Department of Public Works and executed a deed to the state. The property taken may be visualized by carving away approximately 72 1/2 feet in depth from the original rectangle with a frontage of 390 feet on Monterey Road, and augmenting it by a curved bite into the southeasterly corner of the remainder, which left that corner an additional 97 feet back from the new frontage line of Monterey Road. The taking replaced the easterly 170 feet of frontage on Monterey Road with the curve of the bite, which presumably would front on the proposed connecting road. Approximately 220 feet were thus left along the northerly side of the original highway as widened. This take embraced the highway improvements which had been placed on the owners' property pursuant to the 1958 permit.

Under the terms of the negotiated right of way contract ² the state agreed to pay $11,500, and escrow and recording fees, and to construct a 'road approach' to the left of a point which was approximately coincidental with a northerly projection of the center line of Cottle Road. The clause concerning the last undertaking is the principal source of the issues raised on this appeal insofar as it affects the value of the property in its condition before the current take.

Thereafter, because of increased traffic potential in the area, the plans for the connecting road were revised and it became necessary to acquire additional land for its construction. Authorization was secured for the acquisition of an additional .684 acres of the DiTomaso property. The present action was filed and summons was issued May 2, 1963. The property, the subject of this taking, can be visualized as an additional bite out of the southeast corner of the property which moved that corner northerly an additional 267 feet and reduced the frontage along Monterey Road from 220 to about 173 feet. The curved frontage on the right of way for the proposed access road was increased from about 209 to about 425 feet. This take included the residence, garage, sheds, other outbuildings, well and pump house, apricot and prune drying yard and related facilities used in the operation of the orchard on the 19.029 acres which had remained after the 1960 acquisition.

According to the state, the plans at the time of the 1960 acquisition contemplated widening Monterey Road to a divided highway with two lanes of traffic in each direction. The connection from Cottle Road to Ford Road, which left the northerly boundary of Monterey Road opposite the intersection of Cottle Road and immediately curved within the 1960 'bite' in an easterly direction, was projected with one lane in each direction.

At the trial, the owners produced a plan which had been furnished through discovery proceedings taken to ascertain the extent of the improvements contemplated in 1960. It indicated only one four-lane roadway for Monterey Road at the intersection with Cottle Road and the Cottle-Ford connecting road, and had different details for the intersection, including what appeared to be the inclusion of the signal base and curb constructed in 1958.

The state contended that the latter design was furnished in error, and produced a subsequently discovered plan supporting the divided highway projection. This plan was apparently prepared, however, prior to the relocation of Cottle Road and the 1958 improvement of the intersection as the same were indicated on 1958 'As Built' plans, on the design furnished to the owners two weeks before the trial, and on the 'existing Topography' of the plans approved in October 1962 upon which the instant acquisition was predicated.

The evidence for the condemnor indicated that the plans upon which the 1963 condemnation is based contemplated the ultimate development of a four-lane divided highway, with a median strip dividing the eastbound and westbound lanes, between Cottle Road and Ford Road. The grade of the highway would be from .5 of a foot to 2.5 feet above the grade of the owners' property as the road runs easterly on the curve in the new 'bite.' On that curve there would be two through lanes to Cottle Road, a storage lane for traffic desiring to make a left-hand turn to go easterly on Monterey Road, and separation of the traffic making right turns on Monterey Road from the through traffic going south on Cottle Road. In front of the property, Monterey Road would be divided by a median strip and the highway would be widened to permit traffic turning right from the connecting road to merge with the traffic on Monterey Road.

The state adduced expert testimony to demonstrate that in the 'before' condition, and a fortiorari in the 'after' condition, it would be practically impossible to control traffic coming out of any road from the subject property in the area of the proposed intersection which itself would include the approach road area...