People ex rel. Dept. of Public Works v. Rodoni

CourtCalifornia Court of Appeals
Citation243 Cal.App.2d 771,52 Cal.Rptr. 857
Decision Date01 August 1966
PartiesThe PEOPLE of the State of California, ex rel. DEPARTMENT OF PUBLIC WORKS, Plaintiff and Appellant, v. Roy L. RODONI and Thelma I. Rodoni, Defendants and Respondents. Civ. 561.

Harry S. Fenton, Sacramento, Holloway Jones, Jack M. Howard, William C. DeMartini and William R. Edgar, San Francisco, for appellant.

Linneman, Burgess, Telles & Van Atta, Dos Palos, and Cyril Viadro, San Francisco, for respondents.

STONE, Justice.

Defendants own two parcels of farm land, an upper, triangular parcel and a lower rectangular parcel, which are catercornered. Before the taking for highway purposes, the lower tip or southwest corner of the upper parcel touched the upper tip or northeast corner of the lower parcel. A county road along the easterly side of the lower parcel furnished access between the two parcels and to the outside. The freeway cuts off the adjoining corners, taking the tip of each parcel and, of course, the portion of the county road bordering the area taken. The tip taken from the lower parcel, designated 'Parcel 7,' contains .57 acres. The tip from the upper parcel contains .08 acres, and is designated 'Parcel 8.'

Ordinarily, taking two small corners from larger parcels would give rise to a run-of-the-mill condemnation action, but here the taking left the remainder of the upper triangular parcel landlocked. A large irrigation canal forms the hypotenuse of the triangle, while each side borders privately-owned property, so that by taking Parcel 8 and blocking access to the county road, the remaining 54.03 acres were left hemmed in.

Under the authority of Streets and Highways Code section 104.1, 1 plaintiff sought to condemn the 54.03 acres, designated 'Parcel 9,' and pay defendants the value of the land, to obviate severance damages. Defendants contend that the proposed taking of Parcel 9 is not for a public use and that insofar as section 104.1 purports to authorize the taking, it is unconstitutional. this issue was tried by the court and decided against plaintiff. The order, denominated 'Interlocutory Judgment,' provides, in pertinent part:

'1. That said proposed taking by condemnation of that certain piece of parcel of land located in the County of Merced, State of California, and particularly described in said Complaint as Parcel 9 is not a taking for a public use, and is, therefore, unauthorized by law;

'2. Further, that said Complaint be, and the same hereby is, dismissed insofar as it affects or purports to condemn the aforesaid real property described in said Complaint as Parcel 9;

'3. Further, that said action shall proceed duly to trial insofar as the same affects and seeks to condemn the parcels of land located in the County of Merced, State of California, and particularly described in said Complaint as Parcel 7 and Parcel 8, for the purpose of determining the amount of damages, including severance damages, to be recovered by said defendants by reason of the severance of said Parcel 9 from the remainder of their lands;

'4. Said defendants shall have thirty (30) days from and after the entry of this judgment in which to file an amendment to their Answer setting forth the severance damages to be sustained by reason of the severance of said Parcel 9 from said remainder.'

Plaintiff has appealed from the foregoing order, which appeal defendants assert must be dismissed because the order is in substance a nonappealable interlocutory judgment. We are in accord. A federal case gives support to this conclusion. In Sherwood v. Bradford, D.C., 246 F.Supp. 550, a landowner sought relief from a California superior court holding that the taking of his 17-plus acres in excess of actual highway needs was not for a public use, a taking that violated the landowner's constitutional rights, both federal and state. Although in Sherwood the condemnee, rather than the condemnor, sought relief, the question presented is the same, namely, whether the intermediate order of the trial court as to the issue of public use is appealable. In refusing to take jurisdiction, the federal court said, at page 552:

'* * * while the plaintiffs in this case may be precluded from an interlocutory appeal in the condemnation case, nevertheless they have available to them the remedies set forth in the California Code of Civil Procedure, § 1102 et seq., which will permit them, by an appropriate writ sued out of a higher court of the State, to test the validity of acts of the defendants in attempting to condemn property which concededly is not necessary for the uses and purposes of the highway sought to be condemned. That being so, this Court in recognition of the doctrine of comity and in the abstention of the exercise of its jurisdiction concludes that it is appropriate and proper to continue the...

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7 cases
  • Whitney's At for Beach v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • 6 de janeiro de 1970
    ...Court (1942) 20 Cal.2d 697, 701 * * *)' (3 Witkin, Cal. Procedure Appeal, § 10, p. 2151. See also People ex rel. Dept. Pub. Wks. v. Rodoni (1966) 243 Cal.App.2d 771, 774, 52 Cal.Rptr. 857; and Efron v. Kalmanovitz (1960) 185 Cal.App.2d 149, 154, 8 Cal.Rptr. 107.) If the policy against piece......
  • People ex rel. Department of Public Works v. Superior Court of Merced County
    • United States
    • California Supreme Court
    • 1 de fevereiro de 1968
    ...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......
  • South Dakota Dept. of Transp. v. Freeman
    • United States
    • South Dakota Supreme Court
    • 1 de agosto de 1985
    ...in accord with the view that an order adjudicating the right to condemn is not appealable. E.g., People ex rel Dept. of Public Works v. Rodoni, 243 Cal.App.2d 771, 52 Cal.Rptr. 857 (1966); Big Horn Coal Company v. Sheridan-Wyoming Coal Company, 67 Wyo. 300, 224 P.2d 172 (1950), cited in Arp......
  • Cordova v. City of Tucson
    • United States
    • Arizona Court of Appeals
    • 12 de outubro de 1971
    ...See, e.g., First National Bank of Greeley v. Minnesota Mines, 109 Colo. 6, 121 P.2d 488 (1942); People ex rel. Dept. of Public Works v. Rodoni, 243 Cal.App.2d 771, 52 Cal.Rptr. 857 (1966); Camp Phosphate Company v. Marion County, Fla.App., 194 So.2d 302 (1967); Town of Lebanon, Dakota Count......
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