City of Los Angeles v. Los Angeles Pacific Co.

Appeal from interlocutory judgment of condemnation and from an order denying motion for new trial.

This action was brought for the condemnation of a large tract of land within the city of Los Angeles for the purpose of a projected public park, commonly known as " Silver Lake Park.” The action was brought after and pursuant to proceedings by the city council of the city of Los Angeles, which said proceedings were had in accordance with the provisions of the “Park and Playground Act of 1909” (found at page 3066 et seq., Stats. 1909). Included with the land sought to be condemned were certain parcels belonging to appellants

Parcels 86 and 92, it is admitted, have never been devoted to public use, and with respect to those parcels no complaint is made by appellants which will require separate consideration.

Among the principal points which appellants urge upon this appeal are the following:

1. That the court erred in refusing to preserve to defendants their existing electric railroad power pole line and subway rights in parcels 43, 46, 46%, 87, 93, and 94.

2. That the court erred in refusing to make allowance for accruing taxes and assessments as requested by defendants.

3. That an award should have been made for the taking of pole line parcel 46%.

Also, that the court failed to find upon important issues of fact, and that certain material findings fail of support in the evidence.

An issue as to consistency between the proposed park use and the existing uses claimed by appellants, and of the right to a reservation of the right of common user, was raised by the answer, which besides denying the necessity of taking the whole or any part of the land for park purposes, also set forth the existing public uses to which the lands of defendants had been devoted by them, and alleged damages which will accrue to portions not sought to be condemned, unless such reservation of the right of common user be allowed. This issue is not met by the findings, except by finding that “it is necessary that the plaintiff take and condemn for public use” the described land. It is also found, in effect, that the subway parcels are not devoted to public use. There is no specific finding that the taking of an unqualified fee is necessary for the purpose for which the plaintiff is condemning, but the court, as a conclusion of law, holds “that the

Appellants contend, and it is not denied, that the court treated this question as a question of law and not as one of fact. The court deemed itself bound by the decision of the city council to take the fee of the lands described in the ordinance, of intention, because the legislature, in the court’s opinion, had delegated to the city council the determination of the question of what lands should be taken and what estate therein should he taken for park or playground purposes, and assumed that that determination was, under the park act, final, and deprived the court of any power whatever to pass upon these questions which appellants say are delegated to the court under sections 1240 and 1247a of the Code of Civil Procedure. The court treated it as a question of necessity, and determined the case upon a solution of the question of whether the council’s decision is conclusive as to the necessity of taking any particular land for a given improvement, and the - necessity of taking the entire estate in the land.

The “Park and Playground Act of 1909,” in section 7 thereof, referring to condemnation of land for park purposes, reads as follows: “The complaint shall set forth, or state the effect of,. the ordinance of intention, and the ordinance ordering the improvement, but need not set up any other proceedings had before the bringing of the action. Said ordinances shall be conclusive evidence, in such action, of the public necessity of the proposed improvement.” As stated in the complaint and found by the court, the city council by its ordinance, adopted by a vote of more than two-thirds of its members, declared that the public interest and convenience required that the described lands be acquired for park purposes, and that for that purpose it is necessary that the plaintiff take and condemn for public use the said lands; and the court, relying upon that ordinance, and without other evidence showing the necessity for the taking, made its findings as we have stated.

Section 1240 of the Code of Civil Procedure, as in force in January, 1913 [Stats. 1911, p. 620], provides that “The private property which may be taken under this title includes:

. . . 4. Property appropriated to public use; but such property shall not be taken unless for a more necessary public use than that to which it has already been appropriated; provided, that where any such property has been so appropriated by any individual, firm or private corporation, the

No one here denies that the power to finally determine the necessity of taking specified property for a public use may be delegated to a city council. The questions now at issue are to be settled by reading the Park and Playground Act together witfi. the code provisions applicable to the case, and thereby ascertaining the legislative will. The statutes contemplate the taking of private property for public use. They also contemplate that property already devoted to a public use may be taken for a more necessary public use. They further contemplate that where it is proposed to take for public use property already devoted to a public use, and where the proposed new use is also consistent with the existing public use, the two rights shall be exercised in common, under the terms and conditions appropriate to the case. To meet this particular situation, section 1240 of the Code of Civil Procedure, in subdivision 4 thereof, authorizes the court in its decree of condemnation, to “fix the terms and conditions upon which such property may be so taken, and the manner and extent of the use thereof for each of such public purposes.” In the comparative construction of statutes, they are to be harmonized as fully as may be, so as to give them complete

Under this provision, it is contended that the city has no power to permit the use of any part of a public park for the ■maintenance of a power line or of a railroad, either above, on, or below the surface of the ground; that the use of park lands for such purposes would be unlawful, and the city would not have the power to condemn land for park purposes subject to a use prohibited by the charter; therefore, they say, it follows that the use which the city intends to make Af the land sought to be taken is not, and under the law cannot be, consistent with the continuance in use of such land for pole line purposes, or for the projected subway, and neither the court, the city council, nor any other tribunal would have the power to find or declare that the use of the land for park purposes was consistent with its use for any other purpose, and for these reasons that the court was not only not required to pass upon the question of consistency, but was without any power whatsoever to do so.

In response to the above contention we may observe, by the way, that the ordinance upon which respondent relies does except from condemnation certain railroad rights of way located within the limits of the proposed park, and those exceptions are carried into the judgment of condemnation. It is also worthy of note that the pole line and the right of way for a subway pertain to a railroad which extends beyond the city limits and is under state control. If respondent’s theory of the case is to be accepted, it will follow that a state or interstate railway, having established rights of way, tracks, and depots within the city, may be excluded from the city by virtue of a city ordinance ordering that the lands thus occupied shall be taken and included within a city park, and the courts must obey such legislative mandate by condemning the property, without the right to make any inquiry as to the consistency of the public uses, or to prescribe conditions under which the several uses may coexist. Under the statutes to which we have referred, we do not perceive that any such extraordinary limitations have been drawn around the judicial power as vested in the courts. And giving to the above-quoted section of the city charter its full effect in any case to which, within the limits of the state constitution, it may be applied, it means no more than that when land has been

Respondent’s counsel insist that the use of the land occupied by appellants for pole line purposes is not a public use, because the power is furnished only to the railway company and not to the general public. They rely upon authorities which they claim in support of the proposition that a power pole line furnishing electric power to operate the cars of a railway company is not a part of the railroad or a necessary adjunct thereto, in aid of which such company would be entitled to exercise the power of eminent domain. Conspicuous among the decisions to which they refer is Re Condemnation of Land by Rhode Island Suburban Ry. Co., 22 R. I. 455 , [ 52 L. R. A. 879 , 48 Atl. 590 ]. The action was one wherein the railway company sought to condemn a lot for a powerhouse, to generate electricity for its lines of road, for coal pockets for the storage of coal, and for a conduit to carry water from the river to the engine. The supreme court of Rhode Island set aside the judgment in favor of petitioner and ordered a new trial. The court conceded that it is not always necessary that the public use be direct and obvious. “There is a class of cases where the public does not use the land itself, and yet the public necessity is so direct and obvious as to imply a public use. Such, for example, are cases of taking land for engine-houses, car-houses, and repair-shops on steam railroads. These buildings must necessarily be contiguous to the railroad, and, while the public may not use the buildings as such, yet they are of such a character that, without them, the public could not adequately use the railroad itself. They are in fact a part of the railroad. In some eases land for the storage of wood and coal for steam railroads has been held to be taken for a public use. In all of these cases, however, a particular location is made necessary, because of the requirements of the steam railroads.” The court was of the opinion that these considerations do not apply to an electric railroad, since in the latter case there is a wide area of location and consequent freedom of choice, as contrasted with the imperative necessity which is usually found on steam railroads for a particular location. “Neither is it of interest to the public whether the cars are run by trolley or by storage batteries. The company is not limited to a particular location for a power-house, for coal pockets, or for a water sup

Section 465 of the Civil Code says: “Every railroad corporation has power: ... 3. To purchase, . . . hold and use all such real estate and other property as may be absolutely necessary for the construction and maintenance of such railroads, and for all stations, depots and other purposes necessary to successfully work and conduct the business of the road;

“4. To lay out its road . . . and to construct and maintain the same, . . . with such appendages and adjuncts as may be necessary for the convenient use of the same;

“7. To purchase lands ... to be used in the construction and maintenance of its road, and all necessary appendages and adjuncts, or acquire them in the manner provided in title seven, part three, Code of Civil Procedure, for the condemnation of lands. ’ ’

Since, as we have concluded, parcels 43, 46, and 46% have been dedicated to public use, it becomes the duty of the court to determine, as a matter of fact, the issue raised as to the consistency or inconsistency of that use with the proposed park use. If the respective uses are not in fact wholly inconsistent, then it was the further duty of the court to fix the terms and conditions of condemnation by the city, and the manner and extent of use of the property “for each of such purposes. ’ ’

The same result would follow as to the so-called subway parcels, if in fact they were devoted to public use as subways of the railroad prior to the commencement of proceedings by the city for the creation of the proposed park. As to each of these parcels, the finding of fact, based upon undisputed evidence, is that the land was purchased and is held by the defendant Los Angeles Pacific Land Company “for a special and peculiar purpose and use, to wit, for the purpose of constructing therein, thereunder and over, and in and along its lands extending from a point in the vicinity of Fourth and Hill Streets in the city of Los Angeles, in a general westerly and southerly direction through said parcel to the westerly city limits of the city of Los Angeles and beyond to a point of connection in the railroad of the Pacific Electric Railway Company at or near Vineyard station, a railroad to be operated through a subway; but in this connection the court finds the fact to be that said land was not at the commencement of this action and is not now, and never has been, used for such purposes; and further, that said defendant has not acquired either the fee to or easements or rights of way under or over, or any other interests in, such entire strip of land between said terminal points as would be necessary in order to enable it to construct and operate such railroad, nor has it acquired any franchise so to do.” Although the title to the parcels in question is held in the name of the land com

“It is property appropriated to public use, which is . . . protected from condemnation except ‘for a more necessary public use’; and as to lands owned by defendant, but which have not been thus appropriated, and are not likely in the future tote needed for the existing public use, the inhibition does not apply.” (Southern Pac. R. R. Co. v. Southern Cal. Ry. Co., 111 Cal. 221 , [ 43 Pac. 602 ].) In that case it was clear that the strip of land sought to be condemned—although located within the limits of a tract acquired by defendant as part of its right of way—was not in use by the defendant and would not probably be - needed for railroad purposes. The defendant had completed its road upon adjacent land, and had ample room thereon for its business. We are plainly left to infer that if the execution of its plans had been merely unfinished, and if the orderly completion of the work under those plans had required that defendant use for railroad purposes the land sought to be condemned for the use of the plaintiff, the claimed prior devotion thereof to public use by the defendant would have been sustained. From the findings quoted above, it seems that the court, in determining that the parcels in question have not been appropriated to a public use, placed its principal stress upon the facts that appellants have not yet acquired title to all of the property necessary 'to complete the strip over which they expect to construct the proposed lines, and have not obtained any franchise allowing the road to be constructed across the streets which intersect the strip. We cannot subscribe to the doctrine that no part

It is our opinion that the court in its findings should have determined as a matter of fact, both as to the pole line and the subway parcels, whether they had been devoted to a public use, and that upon this issue the burden of proof was upon the defendants. If either of them was devoted to a public use, then the court should have determined as a matter of fact whether that and the proposed use were consistent, and on this issue the burden of proof was upon the plaintiff to show that the uses were not consistent and that they were not on any reasonably possible terms capable of continuing together on the parcels sought to be condemned. The general principle that the state will not exercise the power of eminent domain any further than the necessity of the public requires is recognized by the provisions of the code to which we have referred. Therefore, after the defendants in a case like this have shown that their land is devoted to a public use for which the right of condemnation might be exercised in their behalf, they are protected from destructive interference unless the city can establish by sufficient evidence that in fact the use for park purposes cannot coexist with continued use of the property by the defendants.

Appellants claim that the court in making its interlocutory judgment erred in refusing to reserve this action for further orders covering the matter of taxes and assessments accrued subsequent to the commencement of the action and levied by the city of Los Angeles. In accordance with the findings of fact, the court allowed to the defendants certain sums covering the values of the parcels of land to be condemned, of which it was specified that certain portions of the aggregate sums

It is next claimed that the court erred in refusing to make an award to defendant Pacific Electric Railway Company for the taking of power pole line parcel 46%. Respondent replies that in fact the term “Parcel 46%” was not used to designate any parcel of land sought to be taken, but was a term adopted merely for convenience, to indicate that portion of the pole line which had been built across certain parcels designated by appropriate numbers and which were all owned by defendants other than these appellants, and awards' were made to the owners for the taking thereof. To this appellants reply that the bill of exceptions is stipulated to contain all of the evidence in the ease and a full and true copy “of all of the judgment-roll, except the pleadings of defendants other than the above-named defendants, which said pleadings of said other defendants do not relate to or in any manner affect the rights of the above-named defendants-appellants herein and have no bearing upon the issues raised by the said defendants-appellants in the superior court”; and appellants say that there is no evidence to the effect that there is or was any other owner of parcel 46% or any interest therein, except the Pacific Electric Railway- Company, who was in occupation of the same under claim of dedication and who was devoting the same to public use; that the evidence is absolutely all one way on this point, and that therefore the court erred in failing to award to appellants the value of the right of way. While it does appear in the findings and judgment that the court found that this land belonged to other defendants and did award to other defendants sums for the taking thereof, appellants claim that under this bill of exceptions, which contains all of the evidence in the cause, that those findings and those awards were entirely without the support of any evidence. In the answer of defendants they describe the so-called power pole line parcel 46%, allege their ownership thereof and devotion thereof to public use, and further say “that said parcels of land constitute a part of a right of way for said transmission power line, as an adjunct to the railroad of the defendant, and if said parcels of land are taken without reserving to these defendants the right to hereafter maintain and operate said high power transmission line, this

To the foregoing the respondent replies that the answer contains only an allegation of ownership by the defendants of a right of way over the land (Tr., fols. 477-493). Respondent denies that the testimony shows a dedication thereof to public use and the acquiring of title to a perpetual or any pole line easement. This argument seems to be based upon the previous argument that the use of a pole line for the purposes described is not a public use. It is admitted by respondent that the testimony shows the construction of the pole line and its use for transmission of power to the railway company, but respondent says this does not prove that any title to an easement has been acquired. (Respondent’s Brief, p. 163 et seq.) “Not only did they fail to introduce any testimony to that

We are inclined to the view that Gurnsey v. Northern California Power Co., 160 Cal. 699 , [ 36 L. R. A. (N. S.) 185 , 117 Pac. 906 ], recognizes that under the circumstances there stated the easement acquired by the corporation became a substantial property right, the value of which would have to be accounted for by any other party seeking to enforce a superior right of eminent domain upon the same premises. The owners of the fee, therefore, are not entitled to all of the compensation to be allowed for the taking of the land, if the right of way is to be included in the condemnation without any reservation of further right of use thereof by the defendants.

It is deemed unnecessary to review in detail the several other claims by appellants that the findings do not cover all of the issues raised by the answer, and that the evidence is insufficient to support certain findings. Assuming that upon another trial the court will apply to the case the principles which we have endeavored to make clear in this decision, it is not to be expected that the findings then made will omit any necessary fact or leave room for doubt as to their meaning.

The judgment and order are reversed.

James, J., and Shaw, J., concurred.