People ex rel. Dept. of Public Works v. Garden Grove Farms

• Decision Date: 07 January 1965
• Citation: 42 Cal.Rptr. 118,231 Cal.App.2d 666
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE ex rel. DEPT. OF PUBLIC WORKS, Plaintiff and Respondent, v. GARDEN GROVE FARMS, Defendant and Appellant. Civ. 413.

Page 118

42 Cal.Rptr. 118

231 Cal.App.2d 666

The PEOPLE ex rel. DEPT. OF PUBLIC WORKS, Plaintiff and Respondent, v. GARDEN GROVE FARMS, Defendant and Appellant.

Civ. 413.

District Court of Appeal, Fifth District, California.

Jan. 7, 1965.

As Modified on Denial of Rehearing Feb. 3, 1965.

Hearing Denied March 3, 1965.

Fadem & Graves, Ernest L. Graves and Jerrold A. Fadem, Los Angeles, for appellant.

R. B. Pegram, Hugh R. Williams, Charles E. Spencer, Jr., Los Angeles, Harry S. Fenton, Sacramento, and Robert W. Vidor, Los Angeles, for respondent.

RALPH M. BROWN, Justice.

Appellant appeals from a judgment after a jury trial in a condemnation action awarding defendant the sum of $273,596 for certain real estate which consisted of a parcel known as 8C for freeway purposes, and 8D for a public school site for exchange purposes.

The Garden Grove School District owns a parcel of land located within the limits of the Garden Grove freeway. The District agreed to give this property to the State provided the State acquired a substitute facility for the school district. The property to be used as a substitute facility is the parcel under consideration on this appeal, Parcel 8D, owned by the appellant, and to be used for school purposes. The facts set forth in this paragraph are stated in Highway Commission Resolution No. 5486 in evidence herein (Plaintiff's Exhibit #6).

Parcel 8D consists of an area of land, 2.553 acres, being on the right of way boundary of the freeway and extending 220.09 feet from this boundary.

The court in its findings of fact pertinent to this parcel found that the purpose of the taking of Parcel 8D was for 'a public use authorized by law, * * * for a public school site for exchange purposes'; that 'each and every matter, fact and thing stated * * * in the resolution of the California Highway Commission referred to in Paragraph II of Plaintiff's Third Amendment and Supplement to Complaint in Eminent Domain was and is true, and that the public interest and necessity require the acquisition of * * * 8D for a public school site for exchange purposes.' The court found that 'the fair market value of Parcels 8C and 8D * * * is the sum of $273,596.00.'

In its conclusions of law, the court concluded that Parcel 8D be condemned 'for a public school site for exchange purposes.' Thereafter, the court, in its final order in condemnation, condemned Parcel 8D 'for a public school site for exchange purposes.'

The appellant presents its position that a legislative enactment enabling exchange is jurisdictionally void insofar as it purports to extend beyond an express constitutional provision limiting that power (referring to art. I, § 14 1/2 of the Cal.Const.), and that one public authority is unable to exercise a power bestowed on a different public authority.

The California Constitution, article I, section 14, provides that 'Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for, the owner, * * *.' It will be noted that the remaining portion of this section refers to rights of way or lands to be used for reservoir purposes in connection with municipal corporation, water districts, etc., and for immediate possession.

However, it is the contention of appellant that section 14 1/2 of article I ¹ prevails in this matter.

Pertinent sections to the discussion of this matter are as follows:

Streets and Highways Code section 104 (Stats.1939, ch. 686, p. 2201):

'The department may acquire, either in fee or in any lesser estate or interest, any real property which it considers necessary for state highway purposes. Real property for such purposes includes, but is not limited to, real property considered necessary for any of the following purposes:

'(a) * * *

'(b) For the purposes of exchanging the same for other real property to be used for rights of way. * * *'

Section 104.2 (Stats.1939, ch. 686 p. 2201):

'Whenever property which is devoted to or held for some other public use for which the power of eminent domain might be exercised is to be taken for state highway purposes, the department may, with the consent of the person or agency in charge of such other public use, condemn, in the name of the people of the State of California, real property to be exchanged with such person or agency for the real property so to be taken for state highway purposes. This section does not limit the authorization to the department to acquire, other than by condemnation, property for such purposes.'

(This section was formerly in section 104, subdivision (b) prior to the 1939 amendment.)

Section 104.3 (Stats.1939, ch. 686, p. 2202; see Gov.Code § 191):

'The department may condemn real property or any interest therein for reservations in and about and along and leading to any state highway or other public work or improvement constructed or to be constructed by the department and may, after the establishment, laying out and completion of such improvement, convey out any such real property or interest therein thus acquired and not necessary for such improvement with reservations concerning the future use and occupation of such real property or interest therein, so as to protect such public work and improvement and its environs and to preserve the view, appearance, light, air and usefulness of such public work; provided, that land so condemned under authority of this section shall be limited to parcels lying wholly or in part within a distance of not to exceed 150 feet from the closest boundary of such public work or improvement; provided, that when parcels which lie only partially within such limit of 150 feet are taken, only such portions may be condemned which do not exceed 200 feet from said closest boundary.'

Appellant belatedly urges for the first time on this appeal that respondent failed to plead and prove compliance with the provisions of section 104.2 of the Streets and Highways Code in that no showing was made at the trial that respondent had obtained, prior to commencement of the condemnation action, the consent and agreement of the Garden Grove School District to exchange its lands for a portion of the appellant's lands here sought to be condemned. The contention is not made in the opening brief but is first mentioned in the closing brief and developed in supplemental briefs filed with the permission of this court. Generally, a contention raised for the first time in an appellant's closing brief requires no consideration and may be disregarded. (Thompson v. Thompson, 218 Cal.App.2d 804, 805, 32 Cal.Rptr. 808; Bank of America v. Frost, 205 Cal.App.2d 614, 619, 23 Cal.Rptr. 441; Fernandez v. Fernandez, 194 Cal.App.2d 782, 800, 15 Cal.Rptr. 374; Utz v. Aureguy, 109 Cal.App.2d 803, 805, 241 P.2d 639.) Furthermore, this case was pleaded and tried on the theory that plaintiff was seeking to condemn parcel 8D for a school site for exchange. The heart of the defense was that the plaintiff was powerless to condemn lands beyond the constitutional limitation of 150 feet from the right of way boundary or to acquire by condemnation lands for school sites. The defense attack was thus directed at the constitutionality of the condemnation action and no question was raised as to whether respondent had complied with statutory requirements. The defendant may not now abandon the theory on which the case was tried and defended and raise a new theory of defense on appeal which does not rest on questions of law alone but involves issues of fact not presented as such to the trial court. (Dolske v. Gormley, 58 Cal.2d 513, 518, 25 Cal.Rptr. 270, 375 P.2d 174; Spaziani v. Millar, 215 Cal.App.2d 667, 678, 30 Cal.Rptr. 658; Glens Falls Ins. Co. v. Founders' Ins. Co., 209 Cal.App.2d 157, 171, 25 Cal.Rptr. 753; Estate of Hunter, 194 Cal.App.2d 859, 862-863, 15 Cal.Rptr. 556.)

The resolution of the Highway Commission is prima facie evidence that the property is to be acquired for a public purpose. The burden is on the defendant to show that it is not for a public purpose. (County of San Mateo v. Bartole, 184 Cal.App.2d 422, 432, 7 Cal.Rptr. 569; People ex rel. Dept. Pub. Wks. v. Lagiss, 223 Cal.App.2d 23, 37, 35 Cal.Rptr. 554.)

Under the Lagiss case, if there is no evidence introduced or offered, it becomes conclusive that the property is to be appropriated for public use. There is apparently no claim by the appellant that the property is not going to be used as a school site nor is it claiming that there was no agreement with the school district. The appellant cites no record as to such a position.

As stated above, it is appellant's position that article I, section 14 1/2 of the Constitution, is a limitation on section 14. Section 14 1/2 is only a limitation as to the acquisition of 'memorial grounds, streets, squares, parkways,' etc., and to excess lands adjoining such improvement, which is not involved in this proceeding.

Thus, Parcel 8D is not being acquired pursuant to article I, section 14 1/2 of the California Constitution, or section 104.3 of the Streets and Highways Code, in that the State does not intend to convey Parcel 8D with any reservations concerning the future use and occupancy of such real property or interest therein so as to protect such public work and its improvement This parcel is to be conveyed to the Garden Grove School District in exchange for property to be used by respondent for state highway purposes.

In Redevelopment Agency of City and County of San Francisco v. Hayes, 122 Cal.App.2d 777, 810, 266 P.2d 105, 126, the history of section 14 1/2 is discussed, as follows:

'The title to Senate Constitutional Amendment No. 16, Stats.1927, p. 2371, the means whereby section 14 1/2 was placed on the ballot, states that it is a resolution to propose to the people as addition to the Constitution a section 'relating to the taking of parcels of land by eminent domain where such border upon public improvements.' An examination of the...