People v. Symons

• Decision Date: 17 June 1960
• Citation: 5 Cal.Rptr. 808
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, acting by and through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. Francis G. SYMONS et al., Defendants and Appellants. Civ. 24369.

Page 808

5 Cal.Rptr. 808

PEOPLE of the State of California, acting by and through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. Francis G. SYMONS et al., Defendants and Appellants.

Civ. 24369.

District Court of Appeal, second District, Division 2, California.

June 17, 1960.

Rehearing Denied July 11, 1960.

Hearing Granted Aug. 10, 1960.

Opinion vacated 9 Cal.Rptr. 363.

Vaughan, Brandlin & Baggot and Thomas G. Baggot, Los Angeles, for appellants.

George C. Hadley, San Diego, Robert L. Meyer, Charles E. Spencer, Jr., Philip F. Lanzafame, Los Angeles, for respondent.

ASHBURN, Justice.

Defendants appeal from a judgment in an eminent domain proceeding contending that the trial court erroneously limited the measure of the severance damages to which they are entitled as the result of plaintiff's taking a portion of their residential lot for state highway purposes.

The case is presented to us on an agreed statement, from which we quote: 'This is an eminent domain proceeding wherein plaintiff has condemned a portion of the real property owned by defendants Francis G. Symons and Helen P. Symons for state highway purposes, for such public purposes as are stated in the resolution of the California Highway Commission as set forth hereinafter. Defendants' entire property consists of a lot in the City of Los Angeles improved with a single family residence, garage, other yard improvements and landscaping. The property is on the south side of Sutton Street which runs in a generally east-west direction. Before the condemnation the next intersecting street to the east from defendants' property was Sepulveda Boulevard. In the after condemnation condition Sutton Street was rendered into a cul-de-sac preventing access to Sepulveda Boulevard to the east of the subject property. The San Diego Freeway runs generally in a north-south direction between the defendants' remaining property and Sepulveda Boulevard. Said freeway upon completion will be of conventional construction upon a solid earth fill varying in height from approximately nine to twelve feet above the grade of the subject property. The toe of the slope of the fill will be located from approximately 16 to 52 feet east of the easterly boundary of the remaining subject property. The westerly portion of the fill will contain an off-ramp from the southbound lanes. The westerly edge of the traveled way of the ramp will be approximately 46 to 83 feet from the easterly edge of the remaining subject property. To the east of the off-ramp will be the southbound lanes of the freeway proper, a dividing strip and the northbound lanes of the freeway proper. There will be four lanes of southbound traffic and four lanes of northbound traffic. The center of the dividing strip is approximately 138 to 163 feet from the easterly boundary of the remaining subject property.'

A diagram showing the proposed construction of the freeway in relation to the defendants' remaining property is attached to the agreed statement. This diagram shows that the freeway has been constructed entirely on land formerly owned by persons other than defendants. The portion of defendants' lot actually taken by this proceeding, a triangular parcel 440 square feet in area, was acquired by plaintiff for freeway purposes and was used to create a turn-around area in the Sutton Street cul-de-sac above described. As previously indicated, no part of this parcel taken from defendants was used in the construction of the freeway itself.

The trial court expressly found that the taking of defendants' said parcel for state highway purposes was necessary to the public use and found that all matters set forth in the resolution of the California Highway Commission as alleged in plaintiff's complaint were true, including the declaration that the public interest and necessity require the construction 'of a public improvement, namely a State highway, declared a freeway by resolution of the California Highway Commission on July 17, 1946' and the acquisition for and in connection with said public improvement of the real property therein described as parcel 1.

The trial court found that the fair market value of said parcel was $600. There is no dispute between the parties concerning this valuation of the parcel taken.

The court found that plaintiff had satisfactorily restored the driveway located on defendants' remaining land and that the damages to lawn and sprinkler system amounted to $250; 'that the improvement in the manner proposed consists of the construction of a paved turn-around area in Sutton Street upon which the defendants property abuts with curbs, gutters and sidewalks, and the creation of a cul-de-sac as to Sutton Street immediately to the east of the defendants' property'; that, 'except for the damages referred to in paragraph IX above [lawn and sprinkler system], there are no damages to defendants' remaining property by reason of the taking of Parcel 1 and the construction of the improvement in the manner proposed. * * *'

The trial court made the following conclusion of law: 'That the improvement in the manner proposed is limited to the improvement proposed to be constructed on the property taken from the defendants Francis G. Symons and Helen P. Symons described as Parcel 1 in the complaint on file herein. * * *'

The agreed statement recites as follows: 'Prior to the introduction of any evidence the question was presented to the trial court by counsel, 'What was to be included in 'the construction of the improvement in the manner proposed'? Counsel for the plaintiff contended that the construction of the improvement in the manner proposed was limited to the improvement proposed of be constructed on the property to be acquired in the present eminent domain proceeding from the defendants; and, that in any event, many of the items of severance damage claimed by the defendants were noncompensable. Counsel for defendants contended that the improvement included the freeway to be constructed on lands previously acquired by the plaintiff from persons other than these defendants and not parties to this proceeding. The trial court ruled that the construction of the improvement in the manner proposed by plaintiff was limited to the improvement proposed to be constructed on the land acquired from the defendants in the present proceeding, i. e., the cul-de-sac turn-around area in Sutton Street, and did not include the freeway improvement to be constructed on land previously acquired by plaintiff from persons other than these defendants and not parties to this proceeding. * * *

'The first witness called by plaintiff was Jesse Reynolds who qualified as a civil engineer employed by the California State Division of Highways. * * * Upon voir dire examination and the cross-examination of Mr. Reynolds, counsel for the defendants inquired of said witness, in the presence of the jury, as to the location of the freeway and as to various physical dimensions relative to the freeway and the remainder of the Symons' property, such as the height of the freeway above the grade of Sutton Street and the Symons' property and the distance from the freeway to the easterly boundary of the Symons' property at various points in said boundary. Counsel for plaintiff objected to said questions upon the ground that they were incompetent, irrelevant and immaterial and beyond the scope of the direct examination and said objections were sustained by the court. Thereupon, defendants called Mr. Reynolds as their own witness and asked him in the presence of the jury the same questions regarding the physical relationship of the freeway to the remainder of defendants' property which said questions were each and all objected to by plaintiff upon the grounds of incompetency, irrelevancy and immateriality and all such objections were sustained by the court.

'Defendants called John R. Williams, a real estate broker and appraiser who qualified as an expert upon the valuation of real property.

'Mr. Williams testified, among other things, that in his opinion the fair market value of defendants' entire property before condemnation was $45,000.00, and that the severance damage to defendants' remaining property caused by the taking and the construction of the improvement in the manner proposed by plaintiff was $16,650.00. Mr. Williams stated his reasons for his opinion as to severance damage, as follows: (1) The remaining property was reduced in size and rendered into an irregular shape. (2) Driveway access to the garage was more difficult. (3) The property is no longer in a quiet residential neighborhood but is adjacent to an elevated freeway. (4) Loss of access to the next intersecting street to the east, to wit, Sepulveda Boulevard. (5) Loss of privacy as a result of the construction of the freeway. (6) The view from the remaining property to the east along the street was changed from that of an attractive residential neighborhood to that of an elevated freeway carrying a large volume of automotive traffic. (7) The remaining property would be subject to noise, fumes and dust from the freeway. (8) The house was, after construction of the freeway, misoriented on the lot in that the bedrooms were on the east or freeway side of the lot and the front door faced the freeway.

'The plaintiff moved to strike and objected to the reasons numbered 3, 5, 6, 7 and 8. The motions to strike were granted and objections sustained. The defendants, out of the hearing of the jury, made offers of proof on these items which were objected to and said objections sustained. On cross-examination out of the presence of the jury, Williams testified that he was unable to allocate from the total amount of severance damages, $16,650, a specific sum of money to each of the various items of severance damage to which he testified and that he had no opinion as to the amount of severance damage eliminating from his consideration factors incident to the construction of the...