People ex rel. Dept. of Public Works v. Rodoni
Court | California Court of Appeals |
Citation | 243 Cal.App.2d 771,52 Cal.Rptr. 857 |
Decision Date | 01 August 1966 |
Parties | The 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.
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:
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:
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