People ex rel. Dept. Pub. Wks. v. Volunteers of America

• Decision Date: 15 November 1971
• Court: California Court of Appeals Court of Appeals
• Parties: , 51 A.L.R.3d 844 The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. VOLUNTEERS OF AMERICA, a California nonprofit Corporation, Defendant and Appellant. Civ. 27477.

Page 423

98 Cal.Rptr. 423

21 Cal.App.3d 111, 51 A.L.R.3d 844

The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. VOLUNTEERS OF AMERICA, a California nonprofit Corporation, Defendant and Appellant.

Civ. 27477.

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

Nov. 15, 1971.

Hearing Denied Jan. 13, 1972.

Morgan, Beauzay & Hammer, San Jose, for appellant.

Henry S. Fenton, Chief Counsel, John P. Horgan, Lee Tyler, William R. Edgar, Robert R. Buell, San Francisco, for respondent.

SIMS, Associate Justice.

The Volunteers of America, a corporation, the property owner and defendant in an action in eminent domain instituted by the Department of Public Works to acquire certain real property for freeway purposes, including a part of the entire parcel owned by defendant, has appealed from a judgment which granted it $1,365 as the stipulated market value of the portion of the property taken, including the improvements thereon. The appeal is directed to the failure of the judgment to award the property owner claimed severance damages, and particularly attacks the ruling of the trial court which excluded the evidence of severance damages proffered by the property owner in an offer of proof, the finding of the court that the property owner suffered no severance damages, and the conclusion that the sum of $1,365 should be full compensation for the parcel taken and for all damages suffered or to be suffered by the property owner by reason of the taking of the parcel and the construction of the improvement in the manner proposed by the state.

The issues, as framed by the respondent condemnor which initiated the proceedings in the trial court by its motion to exclude evidence, are (1) whether the property owner can recover severance damages when those damages admittedly flow from the construction and use of improvements which are to be physically located on lands acquired from others; and (2) whether, in any event, the property owner can recover severance damages when the alleged diminution in the value of its remaining property is caused by noise emanating from the use of the freeway which would render the premises, as then improved, uninhabitable and unusable. ¹

The property involved is a narrow triangle along the northerly boundary of the parcel owned by the defendant. The property taken measures 82.01 feet along that boundary from the northeasterly corner, 5.89 feet southerly from that corner along the boundary, and then 82.23 feet on a hypotenuse westerly back to the northerly boundary. The area taken is approximately 223 square feet. ² The parcel before the taking was approximately 125 feet from its westerly to its easterly boundary, and 100 feet from its northerly to its southerly boundary, and had a total area of about 12,957 square feet.

The record revealed that the only improvement planned to be located on the property taken would be a fence approximately six inches inside the right of way line for the freeway. It was suggested that by arrangement with the city the city would erect an ornamental fence in connection with a project to put a park under the freeway. The traveled roadway itself would be 23 feet above ground level on an elevated platform 16 1/2 feet above the ground. The traveled portion of the freeway was planned to be located at a distance of 23 feet inside the southerly line of the freeway after the taking, but the structure itself, with allowance for a shoulder, would be 8 feet closer, or 15 feet from the new property line. The structure would be titled toward and slightly lower to the south.

The defendant's property is located on the northeast corner of two intersecting streets. The improvement which was taken consisted of a shed in the northeasterly corner of the property. It is not a factor in this appeal. The property is also improved by two houses which had been connected for joint use. The foundation line of the northerly rear corner of the northerly house is located about 5 feet from the new freeway right of way line at the closest point. This structure's northerly wall parallels the original northerly property line for about 50 feet at a distance of between 6 and 7 feet. The westerly point of the property taken is opposite a point about half way back from the front of the house. The structure itself overhangs the foundation slightly.

The plaintiff concluded its presentation of the foregoing physical facts on the first day of trial. At the outset of the proceedings on the second day, the following offer of proof was made on behalf of the property owner: '* * * we would offer testimony, (1) that the freeway which is to be constructed, must be considered as a whole * * * as one integral part, and that you cannot separate the portion of the improvement, which is going to be on the land of the defendant Volunteers of America; that the location of the freeway at the point at which it is to be located, including the portion thereof which is on the land of the defendant Volunteers of America, will cause a serious diminution in value to the property of the defendant, approximately $55,000 by way of severance damages; that * * * before the take and before the construction of the improvement, the highest and best use of the property, as presently improved, is that of either student housing or of the present use to which it is being made, that is, a home for unwed mothers and women in distress, sort of a boarding house; that after the take and the construction of the improvement proposed by the state, both on the defendant's land and the land of others, the highest and best use of the property will be that of, what would be testified to as low-grade residential or commercial, that is, either one-story duplex or apartment house or one-story commercial use such as a warehouse; that it would be economically impossible for the property to be sold for the erection of multilevel residential use or any other multilevel procedures, any other multiheight use;

'That the sound level which will be created by the erection of the improvement, as proposed by the state, would be such as to make the premises, as presently improved, uninhabitable and unusuable; that all of the property of the defendant Volunteers of America is within 118 feet of the location of * * * the freeway proper, that the improvements are considerably closer * * * one hundred eighteen feet, * * * being the furthest distance; that the property, as presently used, real property without improvements, is worth approximately three dollars per square foot; that the property's after use is worth approximately $1.50 per square foot; that the improvements, as presently on the property, would be virtually useless * * * with this freeway located as it is.'

It was further stipulated that the physical location of the traveled portion of the freeway would be on the land of others; that no part of the bridge structure would be closer than 9 feet from the existing property line of defendant's property; and that the defendant's witnesses would not be able to testify to severance damages unless they were permitted to testify as to the effect of the freeway on defendant's property.

The court thereupon ruled that the testimony would be excluded. The parties stipulated to the compensation for the property taken. The court ordered judgment accordingly and excused the jury. The defendant unsuccessfully pursued its contention that it should be awarded severance damages by filing objections and proposed counterfindings to those proposed by the condemnor, but findings and judgment were entered as ordered by the court, and this appeal ensued.

I

Section 1248 of the Code of Civil Procedure provides in relevant part: 'The court, jury, or referee must hear such legal testimony as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess:

'1. The value of the property sought to be condemned, and all improvements thereon pertaining to the realty, and of each and every separate estate or interest therein; if it consists of different parcels, the value of each parcel and each estate or interest therein shall be separately assessed;

'2. If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned, by reason of its severance from the portion sought to be condemned, and the construction of the improvement in the manner proposed by the plaintiff; * * *' This court recently stated, 'Accordingly, when a portion of private property consisting of a contiguous parcel of land is condemned for public use under the state's power of eminent domain, compensation is due not only for the value of the land directly taken, but also for so-called severance damages, that is, the damages to the remaining property as the result of its being severed from the part actually taken for public use. (Citations.)' (People ex rel. Dept. Pub. Wks. v. Romano (1971) 18 Cal.App.3d 63, 69, 94 Cal.Rptr. 839, 843).

The condemnor, however, relies on the following rule: 'An owner, whose land is being condemned in part, may not recover damages in the condemnation action to the remainder of his land caused by the manner in which the works are to be constructed or operated on the lands of others. The detriment for which he may recover compensation is that which will result from the operation of the works upon his land alone. (Citations.)' (County Sanitation Dist. No. 2 v. Averill (1935) 8 Cal.App.2d 556, 561, 47 P.2d 786, 788. See also People ex rel. Dept. of Public Works v. Symons (1960) 54 Cal.2d 855, 861, 9 Cal.Rptr. 363, 357 P.2d 451; People ex rel. Dept. of Public Works v. Romano, supra, 18 Cal.App.3d 63, 69--70, 94 Cal.Rptr. 839; Lombardy v. Peter Kiewit Sons Co. (1968) 266 Cal.App.2d 599, 602--603, 72 Cal.Rptr. 240 (appeal dismissed 394 U.S. 813, 89 S.Ct. 1486, 22 L.Ed.2d 748); People ex...