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

• Decision Date: 11 January 1966
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE ex rel. DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. L. J. PRESLEY et al., Defendants and Appellants. Civ. 10895.

Page 672

48 Cal.Rptr. 672

239 Cal.App.2d 309

The PEOPLE ex rel. DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. L. J. PRESLEY et al., Defendants and Appellants.

Civ. 10895.

District Court of Appeal, Third District, California.

Jan. 11, 1966.

Carr, Kennedy & Asbill, Redding, for appellants.

Holloway Jones, Jack M. Howard, Joseph F. DeMartini, John P. Horgan, San Francisco, for respondent.

PIERCE, Presiding Justice.

Defendants own an apartment house on the corner of Tehama and Liberty Streets in Redding, California. They also owned the fee underlying a portion of Tehama Street and entirely occupied thereby. This parcel adjoins the lot on which the apartment house is located.

In this condemnation proceeding the state, as part of a freeway project, condemned the fee of the parcel underlying Tehama Street along which the freeway will run and also condemned the access rights of defendants to Tehama Street. The proceeding was tried to the court.

The sole question raised on appeal is whether the trial court erred when in fixing damages for the condemnees' loss of access and similar rights its refused to include any amount for (1) the increased noise, fumes and annoyance which would result from the more heavily trafficked freeway, and (2) for loss of street parking privileges on Tehama Street previously enjoyed. ¹ (Defendants' parking privileges on Liberty Street will be unaffected by the street improvement.) Our holding is that neither of the matters referred to is a property interest and that, therefore, the losses claimed are not compensable, and we will affirm the judgment.

The particular portion of the field of the law of eminent domain with which we deal is access rights and the right to light, air and view of an abutting owner. California Constitution, article I, section 14, in part, says: 'Private property shall not be taken or damaged ² for public use without just compensation.' This article, self-executing, is bulwarked by title 7 of part 3 of the Code of Civil Procedure, included within which is section 1248, providing in effect that the trier of fact must ascertain and assess the value of the property sought to be condemned and if that property constitutes only a part of a larger parcel, the damages suffered by the severance of the part not taken from the part taken.

'Not every depreciation in the value of the property not taken can be made the basis of an award of damages' in eminent domain. (People v. Ricciardi, 23 Cal.2d 390, 395, 144 P.2d 799, 802; Eachus v. Los Angeles etc. Ry. Co., 103 Cal. 614, 37 P. 750.) But if an owner abutting a street has a property right or interest and it has been impaired or damaged, he is entitled to compensation. (Rose v. State of California, 19 Cal.2d 713, 729, 123 P.2d 505; Bacich v. Board of Control, 23 Cal.2d 343, 349, 144 P.2d 818.)

The right of access and the similar right of light, air and view which we have mentioned above are property rights. They are easements which a property owner abutting a street enjoys in addition to the rights which the public in general has to use the streets. These abutting owners' rights include right of ingress and egress to and from the streets by such modes of conveyance and travel as are appropriate to the highway, exercised in such manner as is reasonable. (See Rose v. State of California, supra, 19 Cal.2d at p. 728, 123 P.2d 505; Bacich v. Board of Control, supra; People v. Ricciardi, supra; People ex rel. Department of Public Works v. Russell, 48 Cal.2d 189, 309 P.2d 10; People ex rel. Department of Public Works v. Ayon, 54 Cal.2d 217, 5 Cal.Rptr. 151, 352 P.2d 519; People ex rel. Department of Public Works v. Symons, 54 Cal.2d 855, 9 Cal.Rptr. 363, 357 P.2d 451; Breidert v. Southern Pac. Co., 61 Cal.2d 659, 663, 39 Cal.Rptr. 903, 394 P.2d 719; 3 Stan.L.Rev., Freeways and the Right of Abutting Owners, pp. 298, 301.) But, as indicated above (and it bears repetition), 'Not every interference with the property owner's access to the street upon which his property abuts and not every impairment of access, as such, to the general system of public streets constitutes a taking which entitled him to compensation.' (Breidert v. Southern Pac. Co., supra, 61 Cal.2d at pp. 663-664, 39 Cal.Rptr. at p. 906, 394 P.2d at p. 722.)

Determination of the problem under the facts of any case as to whether an access right has, or has not, been invaded is one of law for the court. (Rose v. State of California, supra, 19 Cal.2d 713, 727, 123 P.2d 505; People v. Ricciardi, supra, 23 Cal.2d 390, 396-397, 144 P.2d 799; Breidert v. Southern Pac. Co., supra, 61 Cal.2d 659, 662, 39 Cal.Rptr. 903, 394 P.2d 719.) The existence of such a right having been determined, it then becomes the function of the trier of fact to fix the diminution in value, if any, which the property has suffered by reason of the interference of the right. (Breidert v. Southern Pac. Co., supra, at p. 664, 39 Cal.Rptr. 903, 394 P.2d 719.)

In determining the extent of the abutting owner's right or easement of access, the problem of definition is difficult and in the nature of the matter specificity of definition is impossible. It is not very helpful to state that each case must be determined upon its own facts but that is as close to abstract definition as the problem permits. (See, e. g., People ex rel. Department of Public Works v. Russell, 48 Cal.2d 189, 195, 309 P.2d 10; Breidert v. Southern Pac. Co., supra, 61 Cal.2d 659, 665, 39 Cal.Rptr. 903, 394 P.2d 719.)

Definition of the opposite extremes is easy. On the one hand, courts will not award compensation for every inconsequential inconvenience, discomfort and displeasure suffered by the abutting owner as the result of the building of each new public improvement. To so hold would make the cost of public improvements prohibitive. At the other extreme, whenever the courts have found a public improvement substantially interfering with the access of the abutting owner to the street, a property right has been said to exist which has been invaded and compensation based upon the diminution in value of the right interfered with has been awarded.

Between these extremes, our reading of the cases does show discussion of policy factors which are helpful. As stated above, interference to be compensable must be 'substantial' and the right urged must be 'reasonable.' (Breidert v. Southern Pac. Co., supra, 61 Cal.2d 659, 663-664, 39 Cal.Rptr. 903, 394 P.2d 719.) It has been stated (in the majority opinion in Bacich v. Board of Control, supra, 23 Cal.2d 343, at p. 349, 144 P.2d 818, at p. 822, 823) that a test frequently mentioned by the authorities, that the abutting owner may recover if (and presumably only if) he has suffered a damage peculiar to himself and different in kind, as differentiated from degree, from that suffered by the public generally, 'is of no assistance in the solution of the problem.' The reasoning is that if an abutting owner has a property right and if it is impaired the damage is necessarily peculiar to himself. But Justice Traynor, dissenting in Bacich, said (23 Cal.2d at p. 372, 144 P.2d at p. 835): '* * * This statement draws its conclusion from an assumption of the very thing to be proved.' We mention this because, as we see it, consideration of the problem in terms of whether the damage suffered is unique to the condemnee or only that which he shares in general with the rest of the traveling public is one of the more vital factors which aid in reaching a solution of the question: What is the extent of the access right--does it reach the thing which the condemnee claims?

In the determination of whether or not in any given case the claimed interference rises to the status of the invasion of a right there is necessarily involved a weighing of the question as to whether an exercise of the state's police power has been overlapped by its exercise of the power of eminent domain. (See 3 Stan.L.Rev., Freeways and the Rights of Abutting Owners, pp. 298, 302.)

The majority opinion in Bacich (on p. 351, 144 P.2d on p. 823) quotes from Sedgwick on Constitutional Law: "The tendency under our system is too often to sacrifice the individual to the community * * *." We imply no criticism of that statement (see Beckley v. Reclamation Board, 205 Cal.App.2d 734, 23 Cal.Rptr. 428) when we footnote it with Justice Traynor's statement in his concurring opinion in House v. Los Angeles County Flood Control Dist., 25 Cal.2d 384, 396-397, 153 P.2d 950, 956: '* * * The decisive consideration is the effect of the public improvement on the property and whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking.'

Re: The Contention that Defendants had a Street Parking Right, the Destruction of which Entitles them to Compensation.

The case cited and quoted from above have been principally concerned with culde-sacs, circuity of travel, restrictions of view caused by clover-leafs, underpasses and similar incidents of highway construction. Precedent brings us closer to the questions raised in the case at bench. In People ex rel. Department of Public Works v. Ayon, 54 Cal.2d 217, on page 224, 5 Cal.Rptr. 151, on page 155, 352 P.2d 519, on page 523 the only parking problem was offstreet, but the Supreme Court in its opinion (per Justice Peters) stated: "In the proper exercise of its police power in the regulation of traffic, a state or county may do many things which are not compensable to an butting property owner, such as constructing a traffic island, placing permanent dividing strips which deprive an abutter of direct access to the opposite side of the highway, painting double white lines on the highway, or designating the entire street as a one-way street. [Citations.]' (People ex rel. Department of Public Works v. Russell, 48 Cal.2d 189, 197 .) The Russell case held that the use of a parkway as a traffic separation strip between a state highway...