People ex rel. Dept. Pub. Wks. v. Romano

• Decision Date: 13 May 1971
• Citation: 94 Cal.Rptr. 839,18 Cal.App.3d 63
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. Rose ROMANO, Defendant and Appellant. Civ. 27407.

Page 839

94 Cal.Rptr. 839

18 Cal.App.3d 63

The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. Rose ROMANO, Defendant and Appellant.

Civ. 27407.

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

May 13, 1971.

As Modified on Denial of Rehearing June 11, 1971.

Hearing Denied July 7, 1971.

John E. Thorne, Thorne, Stanton, Clopton, Herz & Stanek, San Jose, for defendant and appellant.

Harry S. Fenton, Chief Counsel, John P. Horgan, J. Dennis Sullivan, William R. Edgar, Donald M. Velasco, San Francisco, for plaintiff and respondent.

MOLINARI, Presiding Justice.

Defendant appeals from that portion of the judgment in a condemnation proceeding brought by plaintiff which adjudged that defendant was not entitled to severance damages. ¹ The issue on appeal is whether the trial judge erred in determining that defendant had not suffered a substantial impairment of access as a result of the taking of a portion of her property.

By the instant eminent domain action plaintiff sought to acquire a portion of defendant's property for the purposes of an improvement related to a state highway. In the before condition defendant's property, an unimproved parcel of property, fronted upon the easterly side of Meridian Road (hereinafter referred to as the 'old Meridian Road') between Paula and Pedro Streets, in San Jose. Old Meridian Road ran north and south and Paula and Pedro Streets ran east and west. With relation to defendant's property, Paula Street was to the north and Pedro Street was to the south. Old Meridian Road was 71 feet wide with four lanes of travel, two north and two south. It ran in a straight direction from beyond Fruitdale Avenue, the next street south and parallel to Pedro Street, past Paula Street to the next intersecting street and beyond. Defendant's property, in the before condition, had direct access to Old Meridian Road along all of the frontage of the property.

As a result of the contemplated improvement, a new divided four-lane highway will be constructed to the west of defendant's property and it will be known as Meridian Road (hereinafter referred to as the 'new Meridian Road'). This road will commence at Fruitdale Avenue and will veer in a northwesterly direction passing under two expressways. At a point opposite defendant's property new Meridian Road will be 400 feet distant. The road fronting defendant's property (the old Meridian Road), will be narrowed to 36 feet between Pedro and Paula Streets and will permit one lane of traffic in each direction. Between Fruitdale Avenue and Pedro Street the old Meridian Road will be further narrowed to permit one-way traffic only in a northerly direction. The old Meridian Road will not continue past Paula Street but will curve easterly into Paula Street, and when the improvements are completed, the old Meridian Road will be a continuation of Paula Street. This street (hereinafter sometimes referred to as the 'new Paula Street') will be fenced by a chainlink fence on its westerly side from Fruitdale Avenue to its east-west lateral where the fence will run on its northerly side. This fence will prevent ingress or egress from the new Paula Street into the adjoining expressway area and the new Meridian Road.

It was for the purpose of facilitating the connection between Paula Street and the old Meridian Road that 1488 square feet of defendant's property was acquired in the instant action. Specifically, the property taken will be used solely to 'round out' the curb, gutter, sidewalk and paved surfaces connecting old Meridian Road with Paula Street. After construction of the improvements, the remaining 15,760 square feet of defendant's property will have a slightly improved frontage upon the very same street which fronted the property in the before condition. This is because the proposed curvature of old Meridian Road into Paula Street will add about six feet to the frontage of the property. Traffic will continue to have unrestricted flow past defendant's property to the next intersecting streets in both directions. There will be no direct access, however, from the new Paula Street to the new Meridian Road. In order to get to the new Meridian Road from defendant's property two alternative routes will be afforded. One of these will require going northerly and easterly along the new Paula Street one block to Race Street, ² thence south along Race Street to Fruitdale Avenue, and thence westerly to the new Meridian Road. The other route will require going south along the new Paula Street to Pedro Street, thence easterly one block to Race Street, thence southerly to Fruitdale Avenue, and thence westerly to the new Meridian Road.

No construction relating to the building of the new Meridian Road or any of the highway improvements will take place on land acquired from defendant. Her land is being used solely and specifically to 'round out' the connection between old Meridian Road and Paula Street.

At the trial, a real estate broker was called by defendant as an expert witness. He testified that the highest and best use of the property in the before condition was for commercial uses, but in the after condition, the highest and best use would be for medium density residential purposes. He based this opinion on the fact that in the after condition defendant's property will no longer be fronting on a commercial thoroughfare. The broker then testified that the property is more valuable as commercial property than as residential property.

The trial court concluded that there was no substantial impairment of access to defendant's property in the after condition and thereupon granted plaintiff's motion to exclude defendant's testimony on the issue of severance damages. The parties then stipulated to the value of the portion of defendant's property which was taken and judgment was entered accordingly. ³ Defendant assigns as error the ruling excluding evidence on the issue of severance damages.

Adverting to defendant's contention that the trial court erred in excluding testimony on severance damages, we note that Code of Civil Procedure, section 1248 provides, in part, that, in eminent domain proceedings, where the property sought to be condemned constitutes only a part of a larger parcel, the court or jury must ascertain and assess the damages which will accrue to the portion not 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 plaintiff. 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. (Southern Pac. R.R. Co. v. Hart, 3 Cal.App. 11, 13, 84 P. 218; People v. Marblehead Land Co., 82 Cal.App. 289, 300--301, 255 P. 553; County of Los Angeles v. Signal Realty Co., 86 Cal.App. 704, 709, 261 P. 536; Imperial Irrigation Dist. v. Hamerson, 86 Cal.App.2d 904, 905--906, 195 P.2d 542.)

A condemnee is not entitled to compensation, as severance damages, however, for injury to his remaining land caused by the construction or maintenance of an improvement located on the lands of other persons and not lying on the property taken. (People ex rel. Dept. of Public Works v. Symons, 54 Cal.2d 855, 860, 9 Cal.Rptr. 363, 357 P.2d 451; People ex rel. Dept. of Public Works v. Wasserman, 240 Cal.App.2d 716, 723--727, 50 Cal.Rptr. 95; County Sanitation Dist. No. 2 v. Averill, 8 Cal.App.2d 556, 561, 47 P.2d 786; see also Breidert v. Southern Pac. Co., 61 Cal.2d 659, 666, 39 Cal.Rptr. 903, 394 P.2d 719; People ex rel. Dept. Pub. Wks. v. Ramos, 1 Cal.3d 261, 264, 81 Cal.Rptr. 792, 460 P.2d 992.) In County Sanitation Dist. No. 2, cited in Symons, the principle is stated thusly: '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.)' (8 Cal.App.2d, at p. 561, 47 P.2d, at p. 788.)

In the present case it is uncontradicted that the 1488 square-foot portion being acquired from defendant's larger parcel was not to be used for the construction and realignment of the new Meridian Road nor for any of the other highway works in the highway or freeway system, but only for rounding out the connection of old Meridian Road with Paula Street. The record clearly shows that after the construction is completed, defendant's remaining property will be at the same grade with the old Meridian Road, it will have the same access to this street and will have a slightly improved frontage from that currently possessed. The record also shows that the alleged damages for impairment of access to a major thoroughfare asserted to depreciate the value of the remaining land will result from the construction of the new Meridian Road. However, such public improvement is located on the lands of other persons and does not lie on any portion of the property taken from defendant. We must, therefore, affirm the trial court's denial of severance damages for injury to defendant's remaining land on the ground that the improvement which caused the loss does not lie on the property taken from defendant.

The taking in the instant case is analogous to the taking of the property in Symons. There, the street abutting the defendants' residence was terminated at the boundary of a new freeway which adjoined the defendants' property. The freeway was not constructed on the defendants' property but on the lands...