People v. Loop

• Decision Date: 06 October 1954
• Citation: 274 P.2d 885,127 Cal.App.2d 786
• 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. Roland E. LOOP et al., Defendants, Philip L. Wilson and Maud N. Wilson, Appellants. Civ. 19950.

Page 885

274 P.2d 885

127 Cal.App.2d 786

The PEOPLE of the State of California, acting by and through the Department of Public Works, Plaintiff and Respondent, v. Roland E. LOOP et al., Defendants, Philip L. Wilson and Maud N. Wilson, Appellants.

Civ. 19950.

District Court of Appeal, Second District, Division 3, California.

Oct. 6, 1954.

Stanley M. Arndt, Los Angeles, for appellants.

George C. Hadley, R. B. Pegram, John N. McLaurin, and Albert J. Day, Los Angeles, for respondent.

VALLEE, Justice.

The state brought this proceeding in eminent domain to acquire for freeway purposes the fee title to a triangular parcel of realty, referred to in the record as 'parcel 5 (Amended),' owned by defendants Philip L. and Maud N. Wilson. We shall refer to the property sought to be condemned as 'parcel 5.'

Defendants are the owners of a rectangular, inside, unimproved parcel of realty near downtown Los Angeles, consisting of lot 52 on the east and lot 53 on the west, located on the north side of Wilshire Boulevard, one of the most highly developed and principal thoroughfares leading into the business section of the city. Lots 52 and 53 are contiguous. Together they have a frontage of 122.66 feet on Wilshire Boulevard, a depth of 134.99 feet, and abut in the rear on a 20-foot wide dead-end alley which opens into St. Paul Avenue. They are surrounded by highly developed and improved properties. The parties and all witnesses treated lots 52 and 53 as one unit.

In this proceeding the state seeks to acquire a triangle on the southeasterly corner of the property, 46.63 feet on Wilshire Boulevard, 96.75 feet along the easterly line of lot 52, and 107.62 feet along the hypotenuse. The acquisition of the triangle will reduce defendants' Wilshire Boulevard frontage 38% (from 122.66 to 76.03 feet), and will reduce the area of lots 52 and 53 by 13.65%. The triangle is being acquired in connection with the construction of the Harbor Freeway. Wilshire Drive was formerly located about 130 feet east of defendants' property. It is being moved westerly so that it will abut on the east line of defendants' remaining property. It will have a pavement width of 32 feet, will carry one-way traffic from the freeway, parking will not be permitted, and motor vehicle entrance to defendants' remaining property will not be permitted. Defendants will have only pedestrian access to their remaining property along Wilshire Drive. In effect, Wilshire Drive will be a ramp to carry southbound traffic from the Harbor Freeway to Wilshire Boulevard. The following diagram will assist in understanding the property involved:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

A jury found that the value of parcel 5 was $15,187, the damages to defendants' remaining property was $7,500, and the benefits to the part remaining was $45,000. Defendants appeal from the interlocutory and final judgments which followed.

Defendants' assignments of error are: 1. Error in granting plaintiff's motion to strike substantially all of the testimony of defendants' experts. 2. Errors in rulings on the admission of evidence. 3. Errors in giving and refusing to give instructions.

In a proceeding in eminent domain the owner of the property must be paid not only the value of the property sought to be condemned but also '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'. Code Civ.Proc. § 1248, subd. 2. The trier of fact must ascertain and assess '3. Separately, how much the portion not sought to be condemned, and each estate or interest therein, will be benefited, if at all, by the construction of the improvement proposed by the plaintiffs; and if the benefit shall be equal to the damages assessed under subdivision 2, the owner of the parcel shall be allowed no compensation except the value of the portion taken; but if the benefit shall be less than the damages so assessed, the former shall be deducted from the latter, and the remainder shall be the only damages allowed in addition to the value'. Code Civ.Proc. § 1248, subd. 3, and '7. As far as practicable, compensation must be assessed for each source of damages separately.' Code Civ.Proc. § 1248, subd. 7.

Defendants called two experts as witnesses, Charles G. Frisbie and Thurston H. Ross. Mr. Frisbie appears from the record to be an expert of long and extensive experience in the valuation of real property. His experience, qualifications, and investigation were not questioned at the trial nor are they here. On direct examination Mr. Frisbie testified that the highest and best use of lots 52 and 53 was for a four-story garage with ramps to the alley in the rear for ingress and egress; the market value of parcel 5 was $32,000; there were severance damages in the amount of $12,900; and there were not special benefits. He stated the reasons for his opinions at length. Mr. Frisbie was then cross-examined. On cross-examination, in response to a question by the attorney for the state, he testified that the market value of lots 52 and 53 was $156,000 and that the value of the part remaining after the taking was $111,100. ¹ He testified repeatedly that the part taken was worth more a square foot than the average square foot value of the whole, and the part remaining was worth less a square foot than the average square foot value of lots 52 and 53 as a whole. The cross-examination covered 207 pages of the reporter's transcript. At its conclusion the attorney for the state moved to strike substantially all of Mr. Frisbie's testimony together with a number of exhibits which were introduced in evidence in connection with his cross-examination. The motion, as first made, was to strike all of Mr. Frisbie's testimony 'with respect to his evaluation of the part taken and his damages to the remainder.' The motion, as first made, was followed by much comment and argument by the attorney for the state, in the midst of which he said, 'I want to limit this only to those portions of the testimony to which the argument that I have addressed applies and none other. In other words, as far as I am concerned, the witness's testimony up to and including his testimony of the fair market value of the property and his testimony as to his reasons for the damages or at least as to his reasons as to the severance damage of $12,900 which I would characterize as severance damage, we have no objection to that standing in the record, but as to his process of evaluation which I really feel is tied into that, those should go out, and they are not proper in this case.' After this statement he continued with more comment and argument. Counsel for defendants then sought to have the motion clarified, made definite and certain, and argued in opposition; at the conclusion of which the attorney for the state said, 'I move to strike all of the testimony of the witness with exception of his testimony preceding his expression of the fair market value of the property in the sum of $156,000.,' and he continued the argument.

At the conclusion of this argument the court in part stated, 'If the Court grants the motion, I don't know how in the world we are going to get the matter over to the jury.' In response to a question by the court the attorney for the state said he would not address his motion to Mr. Frisbie's figure of $12,900 severance damages. Counsel for defendants then informed the court that Mr. Frisbie did not, on direct examination, testify to the figure $156,000 as the value of lots 52 and 53 before the taking, but had done so in response to a question by the attorney for the state on cross-examination (which was the fact), and asked if the motion included the exhibits which had been introduced in evidence on cross-examination of Mr. Frisbie. After further discussion the attorney for the state said, 'I specifically move to strike anything in the record, without regard to whether it came first, second, or any other place, the $32,000, anything except the $156,000 valuation of the property before and the testimony on $12,900 on the severances, in other words, his qualification in that regard. * * * I will say all pictures, all photographs that were introduced on cross-examination may go out. * * * [A]bout the only thing then that is competent that he testified to here is what his investigation was, his qualifications, and all the rest of that preliminary and foundational questions, and then if they can salvage something out of either direct or cross-examination which expressed his opinion on value, market value of the property before in the condition it was in, $156,000, I think the reasons he gave on cross, $12,900 on that particular element of severance damage is improper, I think all the rest, the pictures I introduced, because they are all part of it, I expect that they should go out and be eliminated.' The motion, such as it was, was then granted and the court made the following statement to the jury: 'Ladies and gentlemen of the jury, upon the motion of the State of California, plaintiff herein, through its attorneys, the Court has stricken from the record the following portions of the testimony of the defendant's witness Charles Frisbie: (1) His opinion of the fair market value of Parcel 5 amended in the sum of $32,000, and his reasons in support thereof; (2) His opinion of the fair market value of the defendants' remaining property comprising 14,298 square feet and as part of the entire property in its before condition in the sum of $124,000, and his reasons in support thereof; (3) His opinion of the fair market value of defendants' remaining property comprising 14,298 square feet and as a part of the entire property in its after condition in the sum of $111,100, and his reasons in...