Redevelopment Agency of City and County of San Francisco v. Maxwell

• Decision Date: 27 June 1961
• Citation: 193 Cal.App.2d 414,89 A.L.R.2d 1070,14 Cal.Rptr. 170
• Parties: , 89 A.L.R.2d 1070 REDEVELOPMENT AGENCY OF CITY AND COUNTY OF SAN FRANCISCO, a public body, corporate and politic, Plaintiff and Appellant, v. Margaret MAXWELL, aka Margaret Manwell, aka Marjory Alpers, Defendant and Respondent. Civ. 19685.
• Court: California Court of Appeals Court of Appeals

Page 170

14 Cal.Rptr. 170

193 Cal.App.2d 414, 89 A.L.R.2d 1070

REDEVELOPMENT AGENCY OF CITY AND COUNTY OF SAN FRANCISCO, a public body, corporate and politic, Plaintiff and Appellant, v. Margaret MAXWELL, aka Margaret Manwell, aka Marjory Alpers, Defendant and Respondent.

Civ. 19685.

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

June 27, 1961.

Rehearing Denied July 27, 1961.

Hearing Denied Aug. 23, 1961.

Dion R. Holm, City Atty. of City and County of San Francisco, Patrick R. Kelly, Deputy City Atty. of City and County of San Francisco, John D. Rogers, Special Counsel, San Francisco, for appellant.

Joseph A. Brown, San Francisco, Chauncey Tramutolo, San Francisco, for respondent.

Shirley, Saroyan, Cartwright & Peterson, J. Francis Shirley, San Francisco, amici curiae appearing on behalf of contentions of respondent.

DRAPER, Justice.

Plaintiff appeals from judgment entered in an eminent domain proceeding. Defendant's property is being taken for a redevelopment project in the section of San Francisco known as the Western Addition. Her lot is 100 feet by 40 feet. On it are three buildings, each 33 1/3 feet wide, and each containing three flats.

Summons was issued June 12, 1959. Although the case went to trial slightly more than a year after the issuance of summons, it was stipulated that this delay should not affect the statutory valuation date (Code Civ.Proc. § 1249). It is conceded that no right of immediate possession was available to the condemner (Calif. Const. Art. 1, § 14), and no such possession was sought or had.

A fire damaged the buildings on the night of August 12-13, 1959. Although the trial court sustained objections to questions as to the extent of the resulting damage, some testimony did go in when the owner's trial counsel failed to object. This evidence indicates that the westernmost building was badly damaged by fire, and that there was some damage to at least one other building. There was testimony, before interposition of objection, estimating that the fire reduced the total value of defendant's property by about half.

The condemner offered to prove that the owner had received $17,500 from her fire insurance carrier by reason of this fire loss. The offer was rejected. Defendant owner concedes receipt of this payment, but argues that it cannot affect the amount of the award. The trial court also refused the plaintiff's requested instruction that 'the property owner must bear any loss resulting from a fire occurring before the award is made'. The several expert appraisers valued the property, in its condition as before the fire, from $55,000 to $84,500. The jury awarded $60,000, and plaintiff appeals from the judgment incorporating this award.

Under the instructions, the jury award must be deemed to represent full market value of the property at the date summons was issued, without deduction for the destruction by fire of a substantial portion of the improvements. Thus the owner, if this judgment is affirmed, will receive the award of full value for the undamaged premises plus the insurance paid for a fire loss occurring after issuance of summons. The condemner, on the other hand, will pay for a damaged structure its full value before the fire for which the owner has been separately compensated.

Normally one who has both title and possession of real property, as the owner did here, bears the risk of loss. As between parties to a contract of sale of real property, the vendor bears the risk of destruction of a material part of the subject-matter if neither legal title nor possession has been transferred. It is only when either legal title possession has been transferred before destruction of a material part of the subject-matter that the risk of loss shifts to the vendee (Civ.Code, § 1662). In the case at bar, both title and possession remained in the condemnee at the time of the fire.

Even this analogy, however, is unduly favorable to the condemnee. Actually, the mere commencement of an eminent domain proceeding does not bind the condemner to buy. At any time after filing of the complaint and until 30 days after final judgment, the condemner may abandon the proceedings (Code Civ.Proc. § 1255a), in the absence of some element of equitable estoppel (Times-Mirror Co. v. Superior Court, 3 Cal.2d 309, 44 P.2d 547) which is neither present nor suggested here. Lacking any obligation upon the condemner to take and pay for the property, the situation more nearly resembles an option than a contract of purchase and sale. It would hardly be contended that an optionee bears the risk of loss of the property optioned.

In condemnation proceedings, the problem of fixing risk of destruction of the property after summons issues and before trial has not arisen in any reported California decision. In other jurisdictions, there is but little authority. Substantial damage to a toll bridge, occurring after commissioners' recommendation of an award but before court action upon their report, was held to require reversal and a new award (Farmer v. Town of Hooksett, 28 N.H. 244). In a similar factual situation, commissioners appraised a toll bridge before it was damaged by flood, and the court had confirmed the award after the flood damage occurred. The order confirming the award was vacated by the trial court (In re Hudson River Toll Bridge, 81 Misc. 324, 142 N.Y.S. 949). The ensuing award, made after the damage was repaired by the condemnee but refusing its claim that the award should be increased by the cost of such repairs, was confirmed by the same trial court (83 Misc. 331, 145 N.Y.S. 1058).

Alabama, in a recent case, adopts the contrary view. In that case (Jefferson County v. Adwell, 267 Ala. 544, 103 So.2d 143), a building upon the property condemned was destroyed by a fire occurring after commencement of the proceeding but before final award. There court held that value was properly fixed as of date of commencement of the eminent domain proceeding, without regard to the subsequent destruction by fire. It is somewhat difficult to determine the reasoning upon which the decision is based. In 1956, a divided court reversed the judgment below. In 1958 a rehearing was granted, and the court, by a four to three vote, adopted the dissenting opinion initially filed. The several opinions make for some confusion as to the true ground of decision. It seems to turn on the date of 'taking', which in Alabama is fixed by decisional law rather than by statute. The confusion is somewhat compounded by the statement of the ultimate...