Santa Clara County v. Curtner

• Citation: 245 Cal.App.2d 730,54 Cal.Rptr. 257
• Court: California Court of Appeals
• Decision Date: 20 October 1966
• Parties: COUNTY OF SANTA CLARA, Plaintiff and Appellant, v. W. W. CURTNER, Executor of the Estate of John F. Gomes, Deceased, Ben Ginden and Lillian H. Ginden, Defendants and Respondents. Civ. 22755.

Page 257

54 Cal.Rptr. 257 245 Cal.App.2d 730 COUNTY OF SANTA CLARA, Plaintiff and Appellant,
v.
W. W. CURTNER, Executor of the Estate of John F. Gomes, Deceased, Ben Ginden and Lillian H. Ginden, Defendants and Respondents. Civ. 22755. District Court of Appeal, First District,
Division 1, California. Oct. 20, 1966.
Rehearing Denied Nov. 9, 1966.
Hearing Denied Dec. 14, 1966.

Page 259

[245 Cal.App.2d 734] Spencer M. Williams, County Counsel, Santa Clara County, James A. Ersted, Deputy County Counsel, San Jose, for appellant.

Thorne, Stanton, Clopton, Herz & Stanek, by John E. Thorne, San Jose, for respondents Ben and Lillian Ginden.

SIMS, Justice.

Plaintiff, County of Santa Clara, as condemnor, has appealed from a judgment awarding the sum of $70,370, plus costs, for property taken from defendants Ginden as condemnees ¹ for a freeway and for severance damages to their remaining property. The jury awarded $32,850 for the property taken, and $37,520 for severance damages. It is only the latter sum which is in controversy. Plaintiff contends on appeal that the court erred in receiving and in failing to strike evidence of severance damages which was predicated upon assumptions not authorized by law; and in ruling that the property remaining consisted not only of the parcel severed but also included a contiguous parcel which the condemnees had purchased some years before. Complaint is also made that the provisions of the judgment concerning the disposition of the proceeds of the award are not sustained by the evidence.

The Property Involved

The property involved in this action is L-shaped. The base consists of a rectangle approximately 540 feet by 422 feet. The easterly 30 feet of this rectangle was subject to an easement for Sierra Vista Avenue, a public street running approximately north and south terminating on its entrance into Alma Street at the southeast corner of the property. Alma Street [245 Cal.App.2d 735] bordered the property for the remaining 510 feet on the south. The stem of the L consists of a second rectangle which projects northerly approximately 398 feet where it is bounded by Hackett Avenue, a blind street, which runs from the northwest corner of the property easterly along the property line for about 265 feet and thence on approximately 245 feet to Sierra Vista Avenue.

The property the subject of condemnation was a parcel along the north side of Alma Street, the base of the L, about 82 feet deep on the east and 94 feet deep on the west, and a portion of the right-of-way in Sierra Vista Avenue. No claim was made for any damage for taking the latter because it was already subject to an easement. The net amount carved out of the southerly portion of the property was 1.033 acres together with all right of access to Alma Street, either from the property or over Sierra Vista Avenue which was to be closed off as part of the improvement in making Alma Street a freeway.

In 1959 the entire property was owned by John F. Gomes. At that time condemnee Ginden negotiated with him for the purchase

Page 260

and sale of all the property. As a result of these negotiations Gomes sold and the Gindens purchased that portion of the property constituting the stem of the L, and Gomes granted the Gindens an irrevocable option, which extended until thirty days after his death, to purchase the balance of the property.

On August 30, 1962, the northerly portion of the property which was owned by the Gindens was incorporated into the City of Mountain View at their request. In November 1962 the county in planning for the freeway caused a record of survey map to be prepared of the lands of Gomes which set forth only the rectangle subject to the option. This map was recorded April 25, 1963.

On August 19, 1963, Gomes died and on September 16, 1963 the Gindens gave notice of their election to purchase the property. The transaction was approved by the probate court and was closed about January 30, 1964. In November or December 1963, after exercising the option, the Gindens commenced proceedings to annex the remaining property to the city. These proceedings culminated in annexation February 27, 1964.

Meanwhile, on November 12, 1963 the county passed its resolution to condemn the strip adjacent to Alma Street. Action was filed and summons issued on January 10, 1964.

[245 Cal.App.2d 736] The County contended at the pretrial conference that it was seeking 1.033 out of 5.23 acres, the approximate area of the southerly rectangle. Defendants, however, contended that the take was from a total of approximately 7.50 acres, the entire property.

At the trial the court accepted the condemnees' offer to prove that the total area of their property was approximately 7.50 acres, and overruled plaintiff's objections.

The applicable principles were recently reviewed in People ex rel. Dept. of Public Works v. Fair (1964) 229 Cal.App.2d 801, 40 Cal.Rptr. 644, wherein the opinion concludes: 'The problem of what constitutes a single parcel of land in the contemplation of (Code Civ.Proc.) section 1248 is essentially a question of law (City of Oakland v. Pacific Coast Lumber & Mill Co., 171 Cal. 392, 153 P. 705).

'* * * our courts, like those of most jurisdictions, have consistently held that unity of title, unity of use and contiguity are required (People v. Bowers, 226 Cal.App.2d 463, 38 Cal.Rptr. 238; People v. Ocean Shore R.R., Inc., 32 Cal.2d 406, 196 P.2d 570, 6 A.L.R.2d 1179; City of Oakland v. Pacific Coast Lumber & Mill Co., supra; Atchison, T. & S.F. Ry. Co. v. Southern Pac. Co., 13 Cal.App.2d 505, 57 P.2d 575; East Bay Municipal Util. Dist. v. Kieffer, 99 Cal.App. 240, 278 P. 476, 279 P. 178; City of Stockton v. Ellingwood, 96 Cal.App. 708, 275 P. 228).' (229 Cal.App.2d at p. 804, 40 Cal.Rptr. at p. 646; in addition to the cases cited see: People By and Through Dept. of Public Works v. Thompson (1954) 43 Cal.2d 13, 18--26, 271 P.2d 507; People ex rel. Dept. of Public Works v. Dickinson (1964) 230 Cal.App.2d 932, 934, 41 Cal.Rptr. 427; People ex rel. Dept. of Pub. Wks. v. City of Los Angeles (1963) 220 Cal.App.2d 345, 461, 33 Cal.Rptr. 797; City of Menlo Park v. Artino (1957) 151 Cal.App.2d 261, 269--271, 311 P.2d 135; San Benito County v. Copper Mtn. Min. Co. (1935) 7 Cal.App.2d 82, 86, 45 P.2d 428; City of Stockton v. Marengo (1934) 137 Cal.App. 760, 765--767, 31 P.2d 467; 29 A C.J.S. Eminent Domain § 140, p. 589; 27 Am.Jur.2d, Eminent Domain, § 315, p. 134; Annotation, 95 A.L.R.2d 887; Condemnation Practice (Cont. Ed. Bar 1960) Severance Damages, section C, pp. 66--67; 4 Nichols, Eminent Domain, Consequential Damages, § 14.31, pp. 715--735; 3 Witkin, Summary of California Law, Constitutional Law, § 237, p. 2046.)

In the instant case there is no question but that the two parcels involved are contiguous. The county attacks the unity of title by asserting: 'The holder of a mere option to [245 Cal.App.2d 737] purchase land being condemned is not entitled to any part of the

Page 261

compensation to be paid therefor. (Citations.)' (East Bay Mun. Utility Dist. v. Kieffer (1929) 99 Cal.App. 240, 246, 278 P. 476, 479; and see People v. Ocean Shore R.R. Co. (1949) 90 Cal.App.2d 464, 469, 203 P.2d 579; Los Angeles County Flood Control District v. Andrews (1921) 52 Cal.App. 788, 791, 205 P. 1085.) The case on which it relies correctly notes: 'Of course, if the lands under option had been held under a contract obligating the defendant to purchase them, a different rule would apply.' (99 Cal.App. at p. 247, 278 P. at p. 479.) Such is the situation here. The uncontradicted evidence shows that the Gindens had exercised the option and were the equitable owners of the property condemned at the time the action was commenced.

The county also asserts that the ruling of the trial court violated the rule which prohibits consideration of potential joinder of parcels in regard to severance damages, as distinguished from the principle which allows so-called 'assemblage' in determining the value of the land taken. (Cf. People v. Ocean Shore Railroad (1948) 32 Cal.2d 406, 424, 196 P.2d 570, 6 A.L.R.2d 1179, with County of Santa Clara v. Ogata (1966) 240 A.C.A. 272, 278--279, 49 Cal.Rptr. 397.) There was no potential 'assemblage' in this case. The parcels were contiguous and already in common ownership at the time the action was filed.

It was determined at the pretrial conference that the highest and best use of the property was for multiple residential development. The unity of use had not been perpetually destroyed because the former owner reserved a portion of the land for himself subject to the Gindens' option. The trial judge correctly appraised the situation in connection with argument addressed to him on motion for new trial when he stated, 'the thing was all one parcel and the old man just wanted to keep something to live on. It was all one place and was just put back together again.' (See City of Stockton v. Marengo, supra, 137 Cal.App. 760, 765--767, 31 P.2d 467 and City of Stockton v. Ellingwood (1929) 96 Cal.App. 708, 744--746, 275 P. 228.)

Severance Damages

The principal controversy in this case stems from action taken by the City of Mountain View in connection with planning for future development in the light of the establishment of the county freeway.

[245 Cal.App.2d 738] County asserts that the trial court erred in admitting and in refusing to strike (1) evidence of precise plan lines for new streets which would in part traverse a portion of the remainder of the property involved, and (2) evidence of the cost of improving that portion of such streets. It asserts that the damages, if any, attributable to the development plans of the city are collateral and not direct and proximate results of the taking by the county, and that the condemnees if damaged thereby should seek recourse from the city. The condemnees assert with equal vehemence that the evidence was properly admitted because all factors which affect the market value of the...