People ex rel. Department of Public Works v. Superior Court of Merced County

• Decision Date: 01 February 1968
• Docket Number: S.F. 22510
• Citation: 65 Cal.Rptr. 342,68 Cal.2d 206,436 P.2d 342
• Court: California Supreme Court
• Parties: , 436 P.2d 342 The PEOPLE ex rel. DEPARTMENT OF PUBLIC WORKS, Petitioner, v. The SUPERIOR COURT OF MERCED COUNTY, Respondent; Roy L. RODONI et al., Real Parties in Interest.

Page 342

65 Cal.Rptr. 342

68 Cal.2d 206, 436 P.2d 342

The PEOPLE ex rel. DEPARTMENT OF PUBLIC WORKS, Petitioner, v. The SUPERIOR COURT OF MERCED COUNTY, Respondent;

Roy L. RODONI et al., Real Parties in Interest.

S.F. 22510.

Supreme Court of California,

In Bank.

Feb. 1, 1968.

Rehearing Denied Feb. 28, 1968.

Harry S. Fenton, Sacramento, Holloway Jones, Jack M. Howard, William C. DeMartini, San Francisco, Charles E. Spencer, Jr., Los Angeles, and William R. Edgar, San Francisco, for petitioner.

Thomas C. Lynch, Atty. Gen., and Robert L. Bergman, Deputy Atty. Gen., as amici curiae on behalf of petitioner.

Linneman, Burgess, Telles & Van Atta L. M. Linneman and James E. Linneman, Merced, for real parties in interest.

Fadem & Kanner and Gideon Kanner, Los Angeles, as amici curiae on behalf of real parties in interest.

TRAYNOR, Chief Justice.

The Department of Public Works seeks to compel the trial court to proceed with the condemnation of three instead of two parcels of real property owned by the real parties in interest, Roy and Thelma Rodoni.

The department built a freeway across a farm owned by the Rodonis. The farm consists of a southern rectangular parcel and a northern triangular parcel. The northeast corner of the former touches the southwest corner of the latter. The freeway crosses the adjoining corners, taking a tip of each, which total .65 acres. As a result, the northern parcel of approximately 54 acres is landlocked.

SEE DISSENTING OPINION

In addition to the .65 acres the freeway occupies, the department seeks to condemn the remaining landlocked 54 acres pursuant to Streets and Highways Code section 104 .1. ¹ Its purpose is to protect the fisc by eliminating the risk that excessive severance damages to the landlocked parcel might be awarded for the taking of the corner that provided access to it. The department points out that if it is allowed to condemn the entire parcel the Rodonis will receive full value for their property, the risk of excessive severance damages will be eliminated, and ultimately it will be able to reduce the cost of the freeway by selling the part of the parcel not needed for freeway purposes.

The Rodonis challenge the excess condemnation on the ground that taking property for such a purely economic purpose violates article I, section 14 of the California Constitution ² because such taking is not for a 'public use.' They contend that excess condemnation must be limited to parcels that may properly be deemed remnants with respect to which the public interest in avoiding fragmented ownership comes into play. In their view, 54 acres, even if landlocked and of little value, cannot be deemed a remnant of .65 acres. They insist that the state pay severance damages for the landlocked parcel and allow them to retain it, even though severance demages may be equal to its full original market value. They also assert that the excess condemnation is prohibited by section 14 1/2 of article I of the California Constitution ³ because it is not limited to land lying within 200 feet of the freeway.

The trial court decided in favor of the Rodonis and ordered the complaint dismissed insofar as it seeks to condemn the landlocked parcel. It held that to allow the taking of any land not physically necessary for the freeway would be a taking for other than the public use and that if section 104.1 were construed to allow such a taking it would be unconstitutional. The department then petitioned for a writ of mandate ordering the Merced County Superior Court to proceed with the trial of the original complaint or in the alternative for a writ of prohibition forbidding the court from proceeding in accordance with its order dismissing the complaint in part. (See Tide Water Assoc. Oil Co. v. Superior Court (1955) 43 Cal.2d 815, 279 P.2d 35; Financial Indem. Co. v. Superior Court (1955) 45 Cal.2d 395, 399, 289 P.2d 233; People ex rel. Dept. Pub. Wks. v. Rodoni (1966) 243 Cal.App.2d 771, 52 Cal.Rptr. 857.)

We hold that section 104.1 validly authorizes the trial court to proceed with the action to condemn the 54 acres. We also hold, however, that it must refuse to condemn the property if it finds that the taking is not justified to avoid excessive severance or consequential damages. The latter holding will assure that any excess taking will be for a public use and preclude the department from using the power of excess condemnation as a weapon to secure favorable settlements.

It is for the Legislature to determine what shall be deemed a public use for the purposes of eminent domain, and its judgment is binding unless there is no "possibility the legislation may be for the welfare of the public." (Linggi v. Garovotti (1955) 45 Cal.2d 20, 24, 286 P.2d 15, 18, quoting University of So. Cal. v. Robbins (1934) 1 Cal.App.2d 523, 525--526, 37 P.2d 163; see also Housing Authority v. Dockweiler (1939) 14 Cal.2d 437, 449--450, 94 P.2d 794; Lux v. Haggin (1886) 69 Cal. 255, 303--304, 4 P. 919, 10 P. 674; County of Los Angeles v. Anthony (1964) 224 Cal.App.2d 103, 106, 36 Cal.Rptr. 308; Tuolumne Water Power Co. v. Frederick (1910) 13 Cal.App. 498, 503, 110 P. 134.) 'Any departure from this judicial restraint would result in courts deciding on what is and is not a governmental function and in their invalidating legislation on the basis of their view on that question at the moment of decision, a practice which has proved impracticable in other fields.' (United States ex rel. Tennessee Valley Authority v. Welch (1946) 327 U.S. 546, 552, 66 S.Ct. 715, 718, 90 L.Ed. 843.)

Sections 104.1, 104.2, 104.3 and 104.6 of the Streets and Highways Code set forth the purposes for which the department may acquire or condemn property not immediately needed or property not physically needed for state highway purposes. In addition to the excess condemnation authorized by section 104.1, the department may condemn property for nonhighway public uses to be exchanged for property already devoted to such nonhighway uses when the department wishes to acquire the latter property for highway use. (§ 104.2) ⁴ It may condemn property adjacent to highways and other public works to be constructed by it and thereafter convey the adjacent property to private parties subject to restrictions protecting the highway or other public use. (§ 104.3.) ⁵ It may also acquire property for future needs and lease such property until it is needed. (§ 104.6.) ⁶ None of these sections limits the others, and each 'is a distinct and separate authorization.' (§ 104.7.)

Section 104.3 is patterned after section 14 1/2 of article I of the California Constitution and, like that section, limits the property to be taken for protective purposes to property lying within 200 feet of the public work. It may be assumed without deciding that the constitutional provision compelled the statutory limitation; that the reference to streets in section 14 1/2 includes state highways and that protective condemnations authorized by section 14 1/2 are also limited by it. Section 14 1/2, however, does not limit the power of the Legislature to authorize excess condemnation for other than protective purposes. 'Because eminent domain is an inherent attribute of sovereignty, constitutional provisions merely place limitations upon its exercise.' (People ex rel. Dept. Pub. Wks. v. Chevalier (1959) 52 Cal.2d 299, 304, 340 P.2d 598, 601.)

Section 14 1/2 was adopted in 1928 at a time when the validity of any excess condemnation was doubtful. It was not adopted to limit the power of eminent domain but to authorize condemnations that its sponsors believed would not be permitted under then current rules of constitutional law. (1928 Ballot Pamphlet, Argument for Proposed Senate Constitutional Amend. No. 16.) Although it includes limitations on the condemnations it authorizes and to that extent limits the state's inherent power of eminent domain, it in no way limits those condemnations that it does not authorize. Accordingly, since it only authorizes condemnations for protective purposes, it does not restrict condemnations for other purposes. (People ex rel. Dept. of Public Works v. Garden Grove Farms (1965) 231 Cal.App.2d 666, 668--673, 42 Cal.Rptr. 118; see also State ex rel. State Highway Comm. v. Curtis (1949) 359 Mo. 402, 222 S.W.2d 64; State ex rel. Thomson v. Giessel (1955) 271 Wis. 15, 51--54, 72 N.W.2d 577, 595--597; State ex rel. Evjue v. Seyberth (1960) 9 Wis.2d 274, 279--281, 101 N.W.2d 118, 121--122.)

In section 104.1 the Legislature has determined that excess condemnation is for a public use whenever remaining parcels are of little value or in such a condition as to give rise to claims or litigation concerning severance or other damages. Although the statutory language is broad, it may reasonably be interpreted to authorize only those excess condemnations that are for valid public uses; namely, condemnation of remnants (see, e.g., Kern County High School Dist. v. McDonald (1919) 180 Cal. 7, 16, 179 P. 180; People v. Thomas (1952) 108 Cal.App.2d 832, 836, 239 P.2d 914; Opinion of Justices (1910) 204 Mass. 616, 619--620, 91 N.E. 578; 2 Nichols, Eminent Domain (3d ed. 1963) § 7.5122(1), p. 717) or condemnations that avoid a substantial risk of excessive severance or consequential damages. On the record before us, the taking in the present case is justified on the latter ground.

Although a parcel of 54 landlocked acres is not a physical remnant, it is a financial remnant: its value as a landlocked parcel is such that severance damages might equal its value. Remnant takings have long been considered proper. 'The reasoning behind the 'remnant theory,' * * * is that by limiting the acquisition to only such parts of the property as are needed by the particular improvement, fragments of lots would remain of such shape and size as to render them separately valueless, with the result that the city would be required to pay for the whole, although it took only a part, and...