Gibson Properties Co. v. City of Oakland

The following statement of facts upon which this action is based is expressly approved by the appellants, and impliedly by the respondent. We, therefore, accept it as the true factual situation of the parties in this action.

This appeal was taken from a judgment for the defendant in an action at law for damages claimed because of changes in the design and construction of a building made in anticipation that street-opening proceedings, later abandoned, would be carried through to completion.

In March of 1926 the appellant Gibson Properties Company had acquired title to an irregularly shaped piece of land in Oakland within the block bounded on the west by Franklin Street, on the south by Water Street, on the east by Webster Street and on the north by First Street, upon which it proposed to erect a three-story concrete warehouse for the appellant Lawrence Warehouse Company. On March 15, 1926, the Properties Company made a lease to the Warehouse Company of the proposed warehouse, according to plans and specifications then prepared, for a term ending October 15, 1946, for a total rental of $900,000. About this time the Properties Company was granted a building permit, and on April 2, 1926, it made a contract for the construction of the warehouse for $296,000, which was to cover the entire area owned by the Properties Company, the northerly line of which, extending for 100 feet was the southerly line of First Street. On April 15, 1926, a letter was written by the commissioner of public works, referring to the fact that a building permit had been issued, indicating that street-widening proceedings were going to be started and that the street to be opened would impinge upon the Properties Company lot and suggesting “that before definite plans are made for any construction it would be advantageous to yourselves and the City if a conference could be arranged”. Work was, nevertheless, started on the warehouse. On June 17, 1926, the respondent by ordinance, declared its intention to widen First Street for the two blocks from Broadway to Webster Street, under the Street Opening Act of 1903, which opening, the ordinance showed, would add to the width of First Street

On September 15, 1931, the respondent adopted an ordinance repealing the ordinance of intention and all proceedings thereunder, and on December 11, 1931, filed in the condemnation proceedings a notice of abandonment and request for dismissal. On December 16, 1931, the court dismissed the condemnation suit.

May 12, 1933, the complaint was filed in the instant case alleging most of the facts just stated, and claiming general damages in the sum of $55,392, and special damages of $5,696.60 for the Properties Company and $24,608.93 for the Warehouse Company.

“That on the 22nd day of June, 1926, the date of the first publication of the notice of intention to condemn, the market value of said parcel of land described in paragraph IV hereof with the completed improvements contemplated by said plaintiff was $450,000; that the market value of said land and of said improvement as constructed by the plaintiff after the acts hereinbefore in this complaint alleged, was and is $370,000; that the acts and conduct of the defendant as hereinbefore alleged damaged plaintiff Gibson Properties Company in the sum of $80,000. Plaintiffs are informed and believe and therefore allege the fact to be that the expense of restoring said building to its original condition as planned would reasonably cost in excess of the sum of $80,000. ’ ’

It further made the following explicit finding (finding 9) :

“It is true that in June, 1926, the fair market value of said property described in said Second Amended Complaint, improved as it was originally contemplated, was the sum of $335,000.00; that it is true that in June, 1926, the fair market value of said property improved pursuant to its altered plan was the sum of $335,000.00.”

Plaintiffs contend that the mere finding of the court that paragraph XX of the amended complaint is untrue is a typical case of a negative pregnant, and establishes nothing. Conceding this statement to be true, it must be admitted that the facts found by the court, and expressly set forth in finding 9 are utterly inconsistent with the allegations of paragraph XX of said amended complaint. Plaintiffs alleged that the market value of said property with the completed improvements contemplated by the plaintiffs was the sum of $450,000. The court found that the value of said property improved as originally contemplated was $335,000. Plaintiffs alleged that the market value of said property as constructed was the sum of $370,000. The court found that said property improved pursuant to its altered plan was the sum of $335,000. The court by these findings as to the market value of said property if improved as contemplated, and as im

Plaintiffs concede that defendant has offered evidence which at first appearance seems to support said finding, but they contend that this evidence is incompatible with the physical facts, which the evidence without conflict shows existed at all times in reference to said property. In this connection, plaintiffs call to our attention that the building as originally planned covered the entire lot, which of course would include the 20-foot strip which the city sought to condemn, and that the original plans contemplated a depressed railway track extending along said 20-foot strip, while the building as constructed under the altered plans did not extend over the 20-foot strip and did not include the depressed railway track. Furthermore, in omitting the railway track, it was necessary to construct ramps to be used in the loading and unloading of cars. These ramps occupied some 2,800 square feet of space in the building which otherwise could have been used for general warehouse purposes. There was also an additional cost of operating the ramp, which would not have been necessary had the building been constructed with a depressed railway track. The 20-foot strip of land was 100 feet long. It, therefore, contained 2,000 square feet. The building was three stories in height. There was therefore 6,000 square feet more in the building as planned than in the building as constructed, but as the depressed railway track would, of course, have occupied the first floor, this would leave the other two floors each containing 2,000 square feet, or a total of 4,000 square feet more in the building as originally planned than were in the building as actually constructed. These physical facts, the plaintiffs rely upon, and contend that the evidence in behalf of the defendant in support of finding No. 9 is incompatible with these physical facts which are shown to exist by evidence without conflict. In addition

Plaintiffs contend, however, that the case was tried not only on the theory of the diminution of the market value of their property by reason of the change in the plans pursuant to which the building was constructed, but also upon the theory that plaintiffs were damaged in the amount that it would cost to reconstruct or restore the building to the condition in which it would have been had no alteration been made in its plan of construction. In support of their latter theory, the plaintiffs have cited a number of authorities where it was held, in actions to recover on policies of fire insurance for the loss of buildings destroyed by fire, that the cost of restoring the destroyed building is frequently used as a basis of determining the extent of the loss, rather than the market value of said property. We question whether any of these authorities are applicable to the facts in the present action. We are not able to agree with the plaintiffs in their contention that the case was tried upon the double theory of damages, that is, upon the theory that the damages

In the course of the trial one of the attorneys for the plaintiffs stated their position as to the proper measure of damages as follows: “Here is the theory, if the court please. The eases seem to be in this line as quoted in the brief, that your primary measure of damages is the difference in cost or the difference in market value of the property contemplated and as it actually is. That is your primary measure of damage, but the cases go further and hold that if it is cheaper to reconstruct or repair the building, that whichever is the least, is your measure of damages. We propose to show first that it would be impracticable to reconstruct the building from the business standpoint and to shut down, and secondly, that by actual figures it would cost as much as our other damages are in that measure of damage.”

Plaintiffs then produced evidence which tended to support their allegations that the difference in the market value of the property if the building had been constructed according to the original plans and as constructed pursuant to the altered plans was the sum of $80,000. They also attempted to show that the cost of reconstructing the building to make it conform to the original plans was the same amount. This latter evidence ivas apparently introduced upon the theory that they were entitled to recover the lesser of the two amounts of damages. No claim was made during the trial that they were entitled to recover any greater amount than that which represented the diminution in the market value of the property due to the change in the construction of said building.

It is well settled that the theory upon which a case was tried in the court below must be followed on appeal. (Story v. Nidiffer, 146 Cal. 549 , 552 [ 80 Pac. 692 ]; Durkee v. Chino Land & Water Co., 151 Cal. 561 [ 91 Pac. 389 ]; Kaufman v. Tomich, 208 Cal. 19 [ 280 Pac. 130 ].)

Plaintiffs predicated their action solely upon the theory that the market value of their property had been diminished and that the amount of such diminution in value was not

However, this does not dispose of the entire ease before us; but only that part of plaintiffs ’ claim for damages which they contend'they sustained by reason of their having constructed their building pursuant to said altered plans. It does not dispose of their claim for $5,696.60, representing the cost expended by the plaintiff, Gibson Properties Company, prior to the enactment of the ordinance of intention by the city council and prior to the notice to said plaintiff to cease and desist from the construction of any building upon said 20-foot strip. As shown by the statement of facts set forth above, a building covering the whole of said property, including said 20-foot strip, was in the course of construction at the time of the passage of said ordinance of intention, and, upon receiving said notice to cease and desist, said plaintiffs then had their plans redrawn setting back the north wall southerly 20 feet from its original position, changing the location of the elevator pit, and eliminating the depressed railway track. This was done at a cost of $5,696.60.

As noted in the statement of facts, the proceedings to condemn the plaintiffs’ property were instituted and conducted under the Street Opening Act of 1903 (Stats. 1903, p. 376), and amendments thereto in force at the time of the commencement of said proceedings and during their pendency. The case of James v. City of Toledo, 24 Ohio App. 268 [ 157 N. E. 309 , 310], is very closely in point with the instant case as will appear from the following excerpt from the opinion therein: “We have no doubt that the contention that the city could abandon the proceedings to appropriate this property for street purposes without being liable for

That the city in the improvement of its highways is acting in a governmental capacity is held in McNeil v. City of South Pasadena, 166 Cal. 153 [ 135 Pac. 32 ., 48 L. R A. (N. S.) 138 ], and Municipal Bond Co. v. City of Riverside, 138 Cal. App. 267 , 274 [ 32 Pac. (2d) 661 ], Plaintiff, Gibson Properties Company, concedes this general rule and admits that if it is controlling in the instant case they have no right of recovery. It contends, however, that the facts in this case bring it within the exception recognized in the cases of City of Los Angeles v. Cohn, 101 Cal. 373 [ 35 Pac. 1002 ]; Times-Mirror Co. v. Superior Court, 3 Cal. (2d) 309 [ 44 Pac. (2d) 547 ], and McGee v. City of Los Angeles, 6 Cal. (2d) 390 [ 57 Pac. (2d) 925 ]. No useful purpose would be gained by a detailed analysis of these cases showing that the rule announced therein is inapplicable to the instant case. In those eases it was held that an exceptional situation existed therein which exempted them from the general rule relieving the municipality from liability for dámages upon a dismissal of a proceeding in condemnation. There was nothing exceptional in the instant case in so far as the claim of the Gibson Properties Company for $5,696.60 is concerned. It is, therefore, governed by the general rule which holds that by a dismissal of a condemnation proceeding after judgment fixing the value of the property sought to be condemned, a municipality is not liable for damages in the absence of statute authorizing such recovery. No contention is made

The judgment is affirmed.

Shenk, J., Edmonds, J., Waste, C. J., Langdon, J., Seawell, J., and Houser J. concurred.