San Bernardino County Flood Control Dist. v. Sweet

• Citation: 255 Cal.App.2d 889,63 Cal.Rptr. 640
• Court: California Court of Appeals
• Decision Date: 14 November 1967
• Parties: SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT, Plaintiff and Appellant, v. Lem V. SWEET et al., Defendants and Respondents. Civ. 8321.

Page 640

63 Cal.Rptr. 640

255 Cal.App.2d 889

SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT, Plaintiff and Appellant, v. Lem V. SWEET et al., Defendants and Respondents.

Civ. 8321.

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

Nov. 14, 1967.

[255 Cal.App.2d 893] Stanford D. Herlick, County Counsel, and Edward H. Robinson, Jr., Deputy County Counsel, for plaintiff and appellant.

Charles C. Graeber, San Bernardino, for defendants and respondents.

OPINION

TAMURA, Associate Justice.

Plaintiff brought this action in eminent domain to acquire (1) a perpetual easement for the installation and maintenance of a storm drain conduit; (2) fee title to a small parcel for an appurtenant intake facility; and (3) a temporary construction easement along the perpetual easement. Following a jury trial on values, an interlocutory judgment was entered for a net award to the owner of $28,472. Plaintiff appeals from the judgment.

Plaintiff has filed an extensive brief setting forth a number of alleged errors occurring during trial. Basically most of plaintiff's contentions are simply variations of its central argument that defendants' valuation witnesses used improper methods and considered speculative and conjectural uses in arriving at their opinions of fair market value and severance damage.

The larger parcel consists of 10.44 acres located near the southwest corner of Barton Road and Michigan Avenue in unincorporated territory in San Bernardino County. A 125 125 parcel separates the property from the intersection. The property is bordered on the north by Barton Road, on the west by an off-ramp right of way from the Riverside freeway, on the south by property zoned for residential use, and on the east by Michigan Avenue. The parcel is generally trapezoidal, the Barton Road frontage being 260 feet extending eastward from the freeway off-ramp and the southerly boundary being 1245 feet extending from the freeway right of way easterly to Michigan Avenue.

The strip of land condemned for the perpetual easement (.416 acres) extends along and across the westerly portion of the property generally parallel to the freeway right of way. At Barton Road and for a distance of 176.8 feet southeasterly therefrom, it is contiguous to the off-ramp but thereafter, as it extends southwesterly, because of the irregularity of the western boundary of the property, the strip cuts across it leaving 1.70 acres between the easement and the freeway right of way. For most of its length the strip is 20 feet wide, but as it approaches Barton Road it flares out to a width of approximately 40 feet.

The easement vests in the plaintiff-Flood Control District the perpetual right 'to construct, reconstruct, inspect, operate, maintain, and repair flood control drainage and water conservation works and appurtenant structures,' 'to deposit tools, implements and other materials therein and thereon and to take therefrom and/or place thereon earth, rock, sand, and gravel for the purpose of construction, maintenance, and repair,' to enter from time to time for purposes of inspection, 'the right to prohibit the construction or placement of any structure upon, over or across said land unless prior written approval for said construction or placement of said structure is given by the Chief Engineer of said District.'

The fee parcel (.057 acres) for the intake facility is contiguous to and midway along the perpetual easement.

In March 1964 defendant Glenn-Hagen Enterprises (Glenn-Hagen), a partnership, entered into escrow for the purchase of the property. The instructions specified September 26, 1964, as the closing date.

The present action was filed on October 14, 1964. Glenn-Hagen and the record owners answered alleging that the property was subject to a purchase and sale agreement to Glenn-Hagen. In their joint pretrial statements the parties agreed that a special hearing would be requested at least one month before trial to determine the interest of Glenn-Hagen in the event that the sale had not been consummated by June 10, 1965. The only matters reserved for trial were fair market value, severance damages and special benefits.

Between January and June 1965, pursuant to an order of immediate possession, plaintiff constructed a concrete storm drain 48--54 inches in diameter and 5--10 feet below ground level along the entire length of the perpetual easement.

At the commencement of trial on September 14, 1965, neither party having theretofore requested a hearing on the interest of Glenn-Hagen and it appearing that escrow had closed in July 1965, the court determined that Glenn-Hagen was the then owner and that the issue had become moot.

The evidence on values, severance damage and benefits may be summarized as follows:

The property was unimproved except for an old dwelling and a well. When Glenn-Hagen entered into escrow, the Barton Road frontage to a depth of approximately 152 feet was zoned C--1 and the remainder R--4. In April 1964 Glenn-Hagen executed a lease with Texaco for the construction and operation of a service station on a site fronting Barton Road commencing at a point 25 feet east of the freeway off-ramp and extending eastward along Barton Road for 150 feet and to a depth of 150 feet. Some time between May and October 1964 the site covered by the lease was rezoned C--2 and the rear portion from R--4 to C--1. Additionally, in compliance with the requirement of the county for the rezoning, defendants apparently dedicated or offered to dedicate 17 feet along Barton Road to the county. In the joint pretrial statement the parties stipulated that the highest and best use of the property was commercial.

There was a wide disparity in the opinions of the valuation witnesses for the respective parties on market value, severance damage and benefits. A summary of their testimony follows:

For the defendant, Mr. Hagen (partner in Glenn-Hagen) testified that the Texaco lease as originally negotiated left 110 feet of Barton Road frontage available for other uses. In his opinion the highest and best use of the frontage to a depth of 135 feet (after the dedication of 17 feet) was for a gas station on the 150 feet adjacent to the freeway of-ramp and for a restaurant on the remaining 110 feet, and the highest and best use of the rear portion was for a shopping center with a major market, a trailer park, or 'various other commercial uses.' In his opinion the fair market value of the property before the take was $225,000.

On the issue of severance damage it was his opinion that by reason of the terms and conditions of the perpetual easement, the use of 40 feet of the Barton Road frontage impressed with the easement was lost so that after providing for a gas station site only 90 feet of frontage was left for other uses. In his opinion a restaurant of the type previously contemplated would not be feasible on the remaining 90 feet and that its highest and best use would be limited to a 'A & W Root Beer' stand, drive-in food stand, or perhaps an office building, which would produce only one-half the revenue which could be derived from a restaurant. It was thus his opinion that the frontage was devalued by $25,000. As to the rear portion it was his opinion that the 1.7 acres lying west of the perpetual easement which he valued at $18,000 would be isolated from the remainder and thereby rendered valueless. His opinion of the total severance damage was $43,000 and special benefits $3,000.

Mr. Reid (real estate appraiser) called by defendant, testified that the property had three different characteristics and highest and best uses. It was his opinion that the highest and best use of the Barton Road frontage was, by reason of its distinctive location adjacent to a freeway off-ramp, for a gas station and allied use such as a restaurant and of the rear portion for a shopping center, motel, or as a trailer park for a transitional use. He considered various sales in the area, both of gas station sites and acreages and arrived at a fair market value of $180,000 for the property in the before condition. In his opinion the Barton Road frontage had a higher valuation than the rear portion and from an analysis of sales data he testified that a prospective purchaser of the whole would consider the frontage to have a square foot value of $2.13 for the 150 feet adjacent to the off-ramp ($58,500) and $2.00 a square foot for the balance of the frontage ($30,000). In valuing the rear portion at $92,000, he testified that the 5.95 acres adjacent to Michigan Avenue was worth $11,000 per acre and the remaining 3.16 acres, by reason of the possibility of flooding from freeway run off, $8,700 per acre, giving an average value of $10,000 per acre.

As to severance damage, he testified that although in the after condition the frontage would be as well adapted for a gas station as in the before condition, the normal site requirement for a service station being 150 feet by 150 feet, there would be less frontage available for an allied use. Hence, in his opinion, the frontage in the after condition would have a smaller average square foot value to a prospective purchaser. As to the rear portion, it was his opinion that 3.16 acres which he valued at $8,700 per acre in the before condition would be devalued 50%. He estimated total severance damage at $25,945 and special benefits at $3,000.

Mr. Reid denied that he appraised four separate parcels and repeatedly testified that he valued the property as a whole, considering only what a knowing buyer having in mind the different highest and best uses to which the property was adaptable would consider.

Plaintiff's witness, Mr. Grigsby (real estate appraiser) testified that the highest and best use of the Barton Road frontage was, as contemplated by defendant, for a gas station and a restaurant or some related use. In his opinion it had a higher valuation than the remainder of the property. Based upon his investigation and analysis...