City of Oakland v. Schenck

This is an appeal from a judgment in condemnation. The defendant railroad companies were the owners in fee of a strip of land in the City of Oakland 115.272 feet in width and approximately 757 feet in length. The northeasterly 55.272 feet of this strip is in use as a right of way for appellants’ electric suburban railroad, while the southwesterly 60 feet of the strip is not presently devoted to railroad uses. The city brought this action, under the Street Opening Act of 1903, to condemn a strip of land 60 feet wide across the lands of appellants and of defendant Schenek for the purpose of opening and. extending 89th Avenue. The court, sitting without a jury, found the value of the part of appellants’ land not devoted to rail

Appellants’ contentions are that the trial court erred, first, in awarding only one dollar as the value of the easement taken by the city for street purposes across the strip of land owned in fee by the defendants, and used as a railroad right of way, and, second, in holding that the railroad companies were not entitled to damages for the structural changes required in their tracks and appliances resulting from the opening' of the street. [1] A less important contention is that the judgment in condemnation should have provided in terms, in accordance with a stipulation entered into during the trial, that the land was condemned for street purposes in common with the use thereof for railroad purposes. It would have been better practice to have carried such a reservation of use into the judgment; but we do not see how the appellants have been prejudiced by what was done in this ease. The plaintiff below, by the complaint in condemnation, sought only an “easement in, on and over said pieces or parcels of land for street purposes.” The findings fully cover the purposes of the action and the subject of joint user by the city and the railroad companies. The judgment declares that the use of the property (parcel 2) “as and for a public street, is consistent with the continuance of the use of said property for the present use as and for a railroad right of way and that both public uses can exist together.” When these proceedings were instituted the railroad companies had an exclusive right to use the land in question for tracks upon which to move their cars. The city does not propose to interfere in any degree with the enjoyment of that right otherwise than by the opening of the street across the tracks for a public use. The judgment carries no greater estate than a mere easement in the property for

In support of their contention that the trial court erred in allowing only one dollar for the taking of an easement for street purposes over the railroad, right of way, appellants argue, first, that the taking of a right of way for use as another right of way is the taking of land, or an interest in land, which shall not be taken or damaged for public use without just compensation made to the owner or paid into court for him. (Const., art. I, see. 14.) [2] It may not be questioned that a railroad’s right of way is so far private property as to be entitled to the protection of the constitution, so that it can only be taken under the power of eminent domain; and a condition precedent to the exercise of that power is that the statute conferring it make provision for reasonably compensating the owner. (Western Union Tel. Co. v. Pennsylvania R. R. Co., 195 U. S. 540 , 570 [1 Ann. Cas. 517, 49 L. Ed. 312 , 25 Sup. Ct. Rep. 133 , see also Rose’s U. S. Notes].) The interest appropriated by the party condemning may be small, and the amount of compensation difficult of proper measurement, but some award should be made, however small the amount may be. (Lake Erie & W. R. Co. v. Commissioners, 63 Ohio St. 23 [ 57 N. E. 1009 ].) [3] But, because of the nature of the interest in the land which is acquired by a city, where a street is opened across a railroad right of way, the rule as to the amount of compensation to be allowed the railroad company is different from the rule which prevails in the case of the taking of the property of an individual for like uses. The reason for this difference is that one of the incidents of the public use to which a railroad company dedicates its property used as a right of way is the right of the public to construct street crossings wherever and whenever reasonably necessary. [4] In condemning a right of way for a street across a railroad right of way, the inquiry must be directed to ascertaining the extent to which the value of the company’s right to use the land for railroad tracks will be diminished by the opening of the street across it. If the opening of the street across the railroad tracks in this case does not unduly interfere with the companies’ use for legitimate railroad purposes, then their compensation should be nominal. [5] Whether

The legislature has declared what estates and rights in land may be taken in this state for public use. Section 1239 of the Code of Civil Procedure, after designating (subd. 1) the cases in which a fee simple may be taken, prescribes (subd. 2) that, with certain exceptions, only an easement may be taken. One of the exceptions is that “when the taking is by a municipal corporation, and is for the purpose of constructing, equipping, using, maintaining any . . . road ... a fee simple may be taken if the legislative body of such municipal corporation shall, by resolution, determine the taking thereof to be necessary.” In this case only an easement is sought. Section 2631 of the Political Code declares that, by taking land for a highway, the public acquires only the right of way, and the incidents necessary to enjoying and maintaining the same, subject to the regulations in the codes provided. In the present ease it'was stipulated that the portion of the right of way of the appellants sought to be condemned was required for street purposes only, for use by the public in common with the use by the railroad companies; that the uses are consistent; and that the railroad operated by the defendants can exist with the street across it. Appellants, as owners of the fee in the right of way over which the street is opened, will retain their rights in the soil for all purposes which are consistent with the full enjoyment of the ease

[8] Appellants’ second major contention is that the trial court erred in holding that the railroad companies were not entitled to damages for structural changes required in their tracks and appliances, resulting from the opening of the street. The contention presents a question which, like the first discussed, is no longer open to argument. Appellants cannot recover for such costs. The expenses that will be incurred by the railroad companies in making structural changes, such as filling the portion of the tracks between the rails, and two feet outside, with planks, and other crossing changes, in order that the railroad may be safely operated, necessarily result from the maintenance of a public highway, under legislative sanction, and must be deemed to have been taken into account by the railroad companies when they accepted the privileges and franchises granted by the state. Such expenses must be regarded as incidental to the police power of the state. “What was obtained, and all that was obtained, by the condemnation proceedings for the public was the right to open a street across land within the crossing that was used, and was always likely to be used, for railroad tracks. While the city was bound to

We are aware that there has not been a uniformity of opinion in the decisions of the courts of the other states on the questions presented by this appeal. The conflicts appear, however, to be more shadowy than real, when it becomes apparent that they are mainly due to differences in the statutes of the various states. We are not disposed to be led into a critical analysis of the many decisions cited by opposing counsel, but, as the decision of the supreme

Another contention advanced by the plaintiff in error in the Chicago case was that, in arriving at the amount of damages, the trial court failed to take into consideration the fact that a railroad easement is not necessarily in perpetuity, and that in the event of the abandonment of its line the company would find itself deprived of its property without any compensation having been paid therefor. The United States supreme court held (p. 249) that the jury could not properly have taken into consideration the possibility that at some future time the company would put itself in the situation where, if no street crossed its right of way, it might sell its land for what it was worth as land freed from any public easement, for the reason that “such a possibility was too remote and contingent to have been taken into account.” Another contention of the railroad company was that the land sought to be condemned was subject to sale by the railroad company for any lawful use; that, after being condemned for purposes of a public street, it could not be sold, as land held for private use could be sold in the market; consequently, its salable value, treating it as land simply, was practically destroyed by the opening of a public street across it. In answer, the court said (pp. 250, 251) that the railroad company must be deemed to have laid its tracks within the limits of the city subject to the condition, necessarily implied, that new streets might be opened and extended from time to time across its tracks as the public convenience required, and under such restrictions as might be prescribed by statute. The city did not propose to interfere in any degree with the enjoyment of the right of the company to use the land in question for tracks upon which to move its cars, otherwise than by opening a street across the tracks for public use. Con.sequently, it was not bound to obtain and pay for the land

Appellants admit that if the decision of the United States supreme court in Chicago, B. & Q. R. R. v. Chicago, supra, is applicable under the statutes and constitution of this state, it sustains the contention of the City of Oakland, and supports the judgment of the lower court. They contend, however, that the decision should be restricted in its effect to being merely an affirmance of the interpretation given the laws of Illinois by the supreme court of that state. In Illinois, a railroad company can acquire land, whether by voluntary purchase or otherwise, for railroad purposes as defined in its charter. It does not hold land, as does the ordinary owner, with the right of using it for any purpose to which it may be adapted. ( 149 Ill. 457 , 461.) In this state there is no such restriction on the right of a railroad company. It may acquire the fee in land by direct purchase, although it may obtain only an easement for railroad purposes if it resort to proceedings in eminent domain. (Code Civ. Proc., sec. 1238; Southern Pac. R. R. Co. v. San Francisco Sav. Union, 146 Cal. 290 , 292 [ 106 Am. St. Rep. 36 , 2 Ann. Cas. 962, 70 L. R. A. 221 , 79 Pac. 961 ].) But, whatever may be the nature of the interest of the railroad company in the land, in this state, the nature of the easement acquired by a municipality, in condemning a right of way for street purposes across the railroad tracks, as in the present case, is the same as in the state of Illinois. An easement only is taken in each case. Consequently, we find- no difficulty in applying the reasoning of the Chicago case to the situation presented here. Other courts have gone exhaustively into the subject and have reached the same conclusion. A most interesting discussion of the issues presented by this appeal and the cases bearing on the questions will be found in two notes to Grafton v. St. Paul etc. Ry. Co., 16 N. D. 313 [ 113 N. W. 598 ], 15 Ann. Cas. 10-13, and in 22 L. R. A. (N. S.) 1 -15.

Appellants cite two decisions of the courts of this state which, they argue, lay down a rule of compensation differing from that we have followed in the present case: City of Los Angeles v. Zeller, 176 Cal. 194 [ 167 Pac. 849 ]; Los

The judgment of the lower court is affirmed.

Shenk, J., Lawlor, J., Seawell, J., Richards, J., and Myers, C. J., concurred.

Rehearing denied.