Opinion
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 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 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. '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 freeway. In so answering Williams testified that he had made his appraisal on a before and after basis which, in his opinion, precluded such an allocation. Thereupon, the plaintiff renewed its motion to strike from the record Williams' opinion as to the amount of the severance damage caused by the taking and the construction of the improvement in the manner proposed, which motion was granted.
'Defendant Francis G. Symons testified in his own behalf as one of the owners of the property and as a licensed real estate broker and licensed building contractor, and gave his opinion of the fair market value of the entire property prior to condemnation as $45,000.00 and his opinion as to severance damage to the remaining property caused by the taking and the construction of the improvement in the manner proposed by plaintiff, as $16,300.00. Mr. Symons gave as his reasons for his opinion of severance damage the following: (1) The noise and dust from the freeway. (2) The loss of privacy to his remaining property by reason of travelers on the elevated freeway looking into the yard area. (3) The misorientation of the house in the after construction condition. (4) The reduced accessibility of the property to the system of streets. (5) The impairment of the driveway area and the steeper slope to the driveway in the after construction condition. (6) The impairment of the view to the east of the remaining subject property by reason of the obstruction of the elevated freeway.
'On cross-examination Mr. Symons testified that he could not break down his opinion as to severance damage into separate amounts for each reason, and that he did not have an opinion of the amount of severance damage eliminating from his consideration construction of the freeway. In so answering Mr. Symons explained that his opinion as to severance damage was based upon a comparison of his opinion of the fair market value of his property in its before condition as compared to his opinion of the fair market value of the property in its after condition which to his mind absolutely precluded any such breakdown.
'Mr. Symons' testimony concerning his reasons for severance damage was taken outside the presence of the jury. At the conclusion of his testimony plaintiff moved to strike his opinion of the amount of severance damage on the grounds that it included noncompensable items of severance damage and was therefore incompetent, irrelevant and immaterial; the motion was granted.'
So far as material, § 1248, Code of Civil Procedure, subdivision (2) provides: 'The court, jury, or referee must hear such legal testimony as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess: * * * (2) If the property sought to be condemned constitutes only a part of a larger parcel, In the final analysis, the primary question here presented may be stated as follows: What was the 'improvement' involved in this case, within the meaning of the clause 'the construction of the improvement in the manner proposed by the plaintiff' as used in § 1248?
Defendants contend that the 'improvement' is the entire freeway project and that the development of the Sutton Street cul-de-sac is an integral part of that project. Defendants argue that the nature and scope of the 'improvement' are conclusively established by the terms of the resolution of the California. Highway Commission which declared that defendants' property was being taken for freeway purposes. Accordingly, they urge that the trial court erred in refusing to allow them to introduce any evidence to show the effect of the construction of the freeway on the value of their remaining property.
Plaintiff contends, and the trial court ruled, that the 'improvement,' so far as this case is concerned, consisted only of the construction of the paved turn-around area in Sutton Street and the creation of the cul-de-sac. Plaintiff advances the legal proposition that 'in the case of a partial acquisition of private property for a public use, damages to the remainder, caused by the construction of a public improvement, are limited to those damages arising from the construction fo the public improvement on the property acquired from the defendant.'
We have concluded that defendants are correct in their contention that the resolution of the California Highway Commission conclusively establishes the purpose for which their property was taken, that is to say, for freeway purposes, and by the same taken, conclusively establishes that the freeway project is the 'improvement' the effect of which is to be considered in determining their severance damages. The commission, in resolving that defendants' parcel should be taken, expressly stated that the acquisition was for '* * * a public improvement, namely a state highway, declared a freeway by resolution of the California Highway Commission on July 17, 1946.' (Emphasis added.) People ex rel. Department of Public Works v. Chevalier, 52 Cal.2d 299, 304-305, 340 P.2d 598, restates the rule that the resolution of the commission is conclusive as to the public necessity of the proposed improvement and as to the necessity of taking the specific property for the purpose thereof.
Both from a legal standpoint and from a realistic factual viewpoint, it seems necessary to hold that the freeway is the 'improvement' for which defendants' property was taken. It was the freeway which created the Sutton Street cul-de-sac, the construction of which was an integral part of the entire project. This being true, defendants were entitled to have the trier of the facts consider the effect of the construction of the freeway upon the market value of their remaining property.
It generally has been held that, where in the nature of things it would be impossible to separately determine the effect of the portion of an improvement constructed on the land of the condemnee, it is proper to consider the effect of the entire improvement although constructed in part upon lands acquired from others. Colusa & Hamilton R. R. Co. v. Leonard, 176 Cal. 109, 114, 167 P. 878, and see 170 A.L.R. at pages 726, et seq. In the circumstances of the present case, it would be impossible to segregate the severance damages allocable to the portion of the improvement constructed on defendants' land or to so confine the award while having due regard for fair treatment of the property owner.
The cases cited and relied upon by plaintiff, including County Sanitation Dist. No. 2 of Los Angeles County v. Averill, 8 Cal.App.2d 556, 47 P.2d 786; People v. Emerson, 13 Cal.App.2d 673, 57 P.2d 955, and Kishlar v. Southern Pac. R. R. Co.,
Severance damage is not limited to the effects of a construction upon the land which has been partially condemned and defendants were entitled to have the trier of facts consider the effect of the freeway itself upon the value of their remaining property.
We are unable to agree with the trial judge's holding that the items taken into consideration by defendants' experts, those which led to the striking of their entire testimony, are noncompensable in the sense that they may not be taken into consideration by such witnesses in evaluating the effect of the freeway upon the portion of defendants' land not directly taken for freeway purposes.
It should be recognized that cases dealing with change in traffic conditions and their effect upon abutting lots--diverting traffic, creating one-way streets and the like--do not control this case. Those things are definitely categorized as exercise of the police power (see, Holman v. State of California, 97 Cal.App.2d 237, 243, 244, 217 P.2d 448; People v. Sayig, 101 Cal.App.2d 890, 902, 904, 226 P.2d 702; People ex rel. Department of Public Works v. Ayon, 54 Cal.2d 217, 5 Cal.Rptr. 151) and our question is what compensable items of damage proximately flow from the condemnation of a part of an owner's real property.
The police power, rather than the law of emnient domain, embraces and sanctions, without compensation made, the mere rerouting of traffic whether that be through construction of a divider in the center of the street bounding a given property (Holman v. State, 97 Cal.App.2d 237, 244, 217 P.2d 448; People v. Sayig, 101 Cal.App.2d 890, 893, 226 P.2d 702), or requiring that all traffic on the street proceed in one direction only (Beckham v. City of Stockton, 64 Cal.App.2d 487, 502, 149 P.2d 296), or creating other types of diversion or circuity of travel (People v. Ricciardi, 23 Cal.2d 390, 396, 144 P.2d 799; People ex rel. Department of Public Works v. Russell, 48 Cal.2d 189, 195, 309 P.2d 10; Beckham v. City of Stockton, supra, 64 Cal.App.2d at page 502, 149 P.2d at page 303; Rose v. State, 19 Cal.2d 713, 741, 123 P.2d 505; Holman v. State, supra, 97 Cal.App.2d at page 244, 217 P.2d at page 452).
In Bacich v. Board of Control, 23 Cal.2d 343, at page 349, 144 P.2d 818, at page 822, an inverse condemnation case growing out of creation of a cul-de-sac, the court said: 'The major issue presented in this case is whether on not plaintiff may recover compensation under the constitutional provision (Cal.Const., art. I, sec. 14) in the light of the facts stated by him. He is entitled thereto under the wording of that provision if his property has been taken or damaged for a public use. The solution of that question depends largely upon the character and extent of his property right. If he has a property right and it has been impaired or damaged, he may recover. The test frequently mentioned by the authorities, that he may recover if he has suffered a damage peculiar to himself and different in kind, as differentiated from degree, from that suffered by the public generally, is of The items considered by the experts and held by the court to have destroyed the value of their testimony are these, as stated in the stipulation of facts: '(3) The property is no longer in a quiet residential neighborhood but is adjacent to an elevated freeway. * * * (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.' In brief, these spell noise, fumes, dust, impairment of view and loss of privacy through converting defendants' residence into one facing upon a freeway built 9 to 12 feet above grade and distant 16 to 52 feet east of the east boundary of defendants' property. That such effects of the freeway improvement may directly impair the value of defendants' remaining land seems obvious, for they invade the property in such a way that no prospective buyer would fail to take them into consideration, thus impairing the market value. The preponderant authorities sustain the consideration of such detriments as bases for opinion upon fair market value though not as separate compensable items of damage.
People v. O'Connor, 31 Cal.App.2d 157, at page 159, 87 P.2d 702, at page 703, is in point. The denial of a motion to strike the testimony of two expert witnesses was upheld, the court saying: 'Both of them, after giving their opinions as to the severance damage, stated that said opinions were based on the fact that the widening of the highway right of way would decrease the distance from the house to the right of way line from 37 to 27 feet; that the lawn and landscaping in front of the house would be adversely affected; that the highway, being slightly raised, would be more difficult of access, and ingress and egress to and from the premises would be more difficult; and that the increased closeness of the highway would increase traffic noises and hazards. Appellant moved, as to each of these witnesses, that the entire testimony as to damages be stricken, 'on the ground it is based upon mere conjecture and is speculative.'
'These elements of damages mentioned by the witnesses are not claimed by respondents as special damages, but are merely the reasons given by the experts for their opinions that the market value of the portion of the tract not taken would be diminished by reason of the taking of the 1/10-acre strip in front. They are not conjectural but actual admitted facts. The house actually is 10 feet closer to the highway right of way; the highway is actually 2 1/2 feet higher than it was before, and the approach to it is actually more steep, and the traffic actually moves over the highway. All of the matters mentioned were proper reasons to be advanced by the experts as bases for their opinions as to value, and the jury could determine what weight to give the opinions in proportion to the weight the reasons had with them.'
Concerning impairment of light and air the following authorities affirmatively recognize the propriety of taking this detriment into consideration in fixing the market value of a remaining parcel: Williams v. Los Angeles Ry. Co., 150 Cal. 592, 594-595, 89 P. 330; Rose v. State of California, 19 Cal.2d 713, 727, 123 P.2d 505; Backham v. City of Stockton, 64 Cal.App.2d 487, 495, 149 P.2d 296; McCandless v. Brown v. Board of Supervisors,
Of course this means unobstructed and undefiled light and air, precludes loading it with smoke, dust or noise. See, 18 Am.Jur. § 135, p. 761, § 266, p. 907; 29 C.J.S. Eminent Domain § 171, p. 1040; 1 Lewis on Eminent Domain (3rd Ed.), § 357, p. 654; 2 Lewis on Eminent Domain (3rd Ed.), § 736, p. 1302; 5 Nichols on Eminent Domain (3rd Ed.), § 16.1, p. 1.
Shano v. Fifth Ave. & H. St. Bridge Co., 189 Pa. 245, 42 A. 128, 129: 'The creation of noise and dust, the invasion of privacy, the deprivation of light and means of access, the burden of additional fencing, and like matters, are to be taken into consideration, as affecting the market value. They are not separately to be estimated, item by item, and a result to be reached by adding together the different estimates; nor is the effect upon the particular owner because of anything peculiar to himself or his business to be taken into consideration The owner's loss is measured by the difference in the market value of his property. This includes all the elements of depreciation, and represents the whole loss. But the separate items are to be considered, not as distinct items of loss, but as they affect the marked value. This is the rule established by a long line of cases, * * *. Evidence in regard to noise, dust, and invasion of privacy went directly to show the manner in which the construction of the bridge had affected the plaintiff's property. If it showed loss to him, it established a basis for recovery. If it showed the extent of the loss due to depreciation in market value, it showed the legal measure of damages to which he was entitled. It was the right of the jury to consider this evidence, both to determine whether there was a loss, and to what extent these matters affected the market value.' Cf. Tuebner v. California St. R. R. Co., 66 Cal. 171, 174, 4 P. 1162.
Impairment of view is an element to be considered. See, 29 C.J.S. Eminent Domain § 105, p. 912; 18 Am.Jur. § 266, p. 908; 4 McQuillin, Municipal Corporations (2d Ed.), § 1425, p. 102, § 1426, p. 109; 4 Nichols on Eminent Domain (3rd Ed.), § 14.2431, p. 360. Perhaps the right of view is limited to seeing abutting property from the street (as the matter is phrased in People v. Ricciardi, supra, 23 Cal.2d 390, 404, 144 P.2d 799), but we do not think it so narrowly confined. No such refinement was called for in Ricciardi or other California cases which mention the subject.
First Nat. Bank of Montgomery v. Tyson, 144 Ala. 457, 39 So. 560, 562: 'Moreover, the right of view is not rested alone on the right of the complainant to have the highway remain unobstructed, so that people going south may have a view of his building, but also upon the right of view from the building.'
Barnes v. Commonwealth, 305 Mass. 339, 25 N.E.2d 737, 738, 127 A.L.R. 104: 'The jury were entitled to consider the fact that the construction of the way involved the erection of a viaduct over a railroad. * * * If that viaduct actually reduced the market value of the remaining land through interference with a desirable view, that interference must be considered in assessing the damages.'
The defendants' house was built to face east and the view was toward Sepulveda Boulevard; now that artery and the surrounding area is cut off and the house faces a freeway built 9 to 12 feet above grade. In our opinion this interference with view is compensable.
Loss of privacy incident to occupants of cars on the freeway peering into defendants' home or invading it with the beams of their headlights (if such were proved to be the reasonable probability), should also be held an item of direct detriment properly to be considered by an expert witness. 'Where a partial taking is effected by the exercise of the power of eminent domain '[W]henever the enjoyment by the plaintiff of some right in reference to his property is interfered with, and thereby the property itself is made intrinsically less valuable, he has suffered a damage for which he is entitled to compensation.' Eachus v. Los Angeles, etc., Ry. Co., 103 Cal. 614, 617, 37 P. 750, 751.
That loss of privacy should be considered in proper cases was held in Stoner v. Iowa State Highway Commission, 227 Iowa 115, 287 N.W. 269, 273; Moore v. New York El. R. Co., 130 N.Y. 523, 29 N.E. 997, 998, 14 L.R.A. 731. See, also, 29 C.J.S. Eminent Domain § 166, p. 1038; 20 C.J. § 238, p. 790; 4 Nichols on Eminent Domain (3rd Ed.), § 14.2432, p. 362. There is of course some contrariety of authority in this respect, but the true rele would seem to be that this type of impairment of use, which in turn affects market value, should be taken into consideration in making an estimate of the total effect of the taking. If it did not clearly appear from the direct examination of the experts at bar that there would be an impairment of privacy, that was a matter for further exploration upon cross-examination and for consideration in weighing the expert's opinion and, in a jury case, the giving of an appropriate instruction.
If it should develop that this or any other one or two elements of damage considered by an expert was not appropriately entertained, that should not afford ground for striking his entire testimony. People v. Loop, 127 Cal.App.2d 786, at page 800, 274 P.2d 885, at page 895, an eminent domain case, so held, saying: 'There is an additional reason why the motions should have been denied. A motion to strike must, be precise, definite, and certain. It must be directed with precision to the matter sought to be stricken. Rose v. State, 19 Cal.2d 713, 742, 123 P.2d 505. Where testimony is admitted, some of which is relevant and competent and it is intermingled with that which is improper, a motion to strike should be directed to the portion attacked so that no uncertainty may remain as to the testimony challenged. Bates v. Newman, 121 Cal.App.2d 800, 804, 264 P.2d 197. The burden is on the party making the motion to make the proper motion. (Bates v. Newman, supra, 121 Cal.App.2d 804, 264 P.2d 197.)'
Buena Park School Dist. of Orange County v. Metrim Corp., 176 Cal.App.2d 255, 1 Cal.Rptr. 250, 255: 'It is further contended that the court erred in refusing to strike the testimony of defendants' expert witnesses. This is based upon the contention that their evidence with reference to market value is based upon a consideration of the total value of completely improved lots less the cost of subdivision. It is true that the court may properly strike from the record testimony of value which is based upon an erroneous theory of value. People ex rel. Dept of Public Works v. Dunn, 46 Cal.2d 639, 641, 297 P.2d 964.
'This ruling, however, should not be made when a portion only of the testimony of the witnesses is improper. In such case a motion should be directed to that portion of the testimony which is objectionable. As has been pointed out, much of the testimony of these expert witnesses was proper. It was proper to give testimony concerning comparable sales. It was also proper to show the cost of completing the subdivision and the value of lots therein for the purpose of throwing such light as it could upon the price which a purchaser would pay. The objections made did not point out the portion of testimony sought to be stricken, but were general in nature and aimed at the entire testimony. The court properly overruled them.' See, also, Rose v. State, supra, 19 Cal.2d 713, 742, 123 P.2d 505. The cases of Blumenstein v. City of Long Beach, 143 Cal.App.2d 264, 270, 299 P.2d 347, and People ex rel. Department of Public Works v. Dunn, 46 Cal.2d 639, 297 P.2d 964, and not to the contrary, for they involve situations in which the basic theory of the witness was considered to be incorrect or the erroneous elements so pervasive as to render the entire opinion valueless. The Dunn case recognizes and applies the rule hereinabove stated. The court states at pages 641-642 of 46 Cal.2d, at page 966 of 297 P.2d: 'On the other hand, it is the general rule that income from property in the way of rents is a proper element to be considered in arriving at the measure of compensation to be paid for the taking of property. [Citations.] The court erred in striking the evidence of Harrington and instructing the jury to disregard all his testimony with respect to the lease.'
We have concluded that for the reasons above set forth defendants are entitled to a new trial.
Judgment reversed.
FOX, P. J., concurs.