Vallejo & Northern Railroad v. Reed Orchard Co.

The question involved respects the claim of appellant to share in the damages awarded for condemnation in the above-entitled action. Komano was a tenant in possession of the Reed orchard property under a five-year lease expiring November 1, 1912. The fee was in the said Reed Orchard Company. The condemnation proceedings were commenced in 1910 and tried in 1912, the preliminary order of condemnation being entered April 18, and the final decree of condemnation April 29, 1912. Komano was named as one of the defendants and he was personally served, but he did not appear in the action. As to him the court found: “That the said defendant, S. Komano, is in the possession of the property herein condemned and also the larger tract or parcel of which the same is a part, as the tenant of the said defendant Reed Orchard Company, a corporation, but that the tenancy and possession of the said S. Komano is by virtue of a certain indenture of lease, . . . but that under and by virtue of the terms of the said lease, it was by and between the said Reed Orchard Company and the said S. Komano understood and agreed that the said lease should be terminated in the event that the said land herein condemned, .and the said larger parcel, or any part thereof, should be condemned by any judgment of condemnation, and that the estate, right, title and interest of the said S. Komano therein is of no value.” The rental under the lease was seven thousand five hundred dollars per year, payable $3,750 January 1st and $3,750 July 1st of each year. On January 1, 1912, Komano made the semi-annual payment, and there is no dispute that he proceeded as required by the lease to cultivate, prune, spray, and otherwise care for and protect the orchard and fruit crops growing on the premises. An appeal was taken from the decree of condemnation, and pending the appeal, to wit, on July 1, 1912, Komano and the plaintiff and others entered into an agreement whereby the crops of 1912 were harvested and the proceeds applied to the payment of the July rental; to the expenses of harvesting and selling the crops and to certain other items, and the balance of the money was deposited in bank, to be paid to the persons entitled thereto. This

Certain legal propositions advanced by appellant may well be conceded for the purposes of the case.

1. Where a tenancy is of uncertain duration and is terminated while the crops are growing through no act or fault of the tenant, he has the right to harvest and remove the crops (8 R. C. L., p. 364; Civ. Code, secs. 819, 820); and this rule applies to fruit growing on trees. (Vulicevich v. Skinner, 77 Cal. 239 , [ 19 Pac. 424 ]; Purner v. Piercy, 40 Md. 212 , [ 17 Am. Rep. 591 ].)

2. Komano was the owner of this crop of fruit, which is recognized as fructus industriales, and “regarded as personal chattels independent and distinct of the land and capable of sale without regard to whether growing or matured. ’ ’ (Swafford v. Spratt, 93 Mo. App. 634 , [ 67 S. W. 702 ]; Lynch v. Sprague Roller Mills, 51 Wash. 535 , [ 99 Pac. 580 ].)

3. The default of Komano would not affect his right to any compensation to which he was entitled. “If the defendants make default, the plaintiff must still have a valuation made and tender the amount to the defendants as a consideration for the property acquired through the proceeding.” (Aliso Water Co. v. Baker, 95 Cal. 268 , [ 30 Pac. 537 ].)

4. Where land is taken for public use, the damages awarded are personal property into which the real property taken has been converted by operation of law. The award represents the aggregate value of all the estates and interests in the real property acquired, and any person interested may obtain a judicial allotment of Ms proportionate share and recover the amount thereof. (Utter v. Richmond, 112 N. Y. 610 , [ 20 N. E. 554 ]; Murphy v. Hirschman, 168 App. Div. 153 , [ 153 N. Y. Supp. 849 ].)

In Big Lost River Irr. Co. v. Davidson, 21 Idaho, 160 , [ 121 Pac. 88 , 92], no consideration was suggested.as to who would share in the award. There was an objection, however, that the verdict should have been segregated as to the several parcels of land which were condemned, but the court held that the objection had been waived by failure to take advantage of it at the proper time.

The conflicting claims of title to the land appropriated are obviously what the court had in view.

In Lafferty v. Schuylkill River East Side R. Co., 124 Pa. St. 297 , [ 10 Am. St. Rep. 587 , 3 L. R. A. 124 , 16 Atl. 869 ], the supreme court of Pennsylvania held that “crops planted by the owner of land after the location of a railroad, but before the damages had been paid or secured or notice given of an intent to enter are proper subjects for compensation when the land is taken.” In that case, however, the action was brought by the tenant against the railroad company for damages after it had taken possession of the land. There was no suit for condemnation as the company appropriated said land under an agreement between it and the owner of the fee.

In Buchanan v. Kansas City, 208 Mo. 674 , [ 15 L. R. A. (N. S.) 834 , 106 S. W. 531 ], the decision was in favor of one having a lien on the land which was condemned, and it was held by the court that “when the money was paid into court, it represented, and stood in place of, the land condemned, and the claimants had the same right to and interest in the money that they had in the land.”

In Van Loan v. City of New York, 105 App. Div. 572 , [ 94 N. Y. Supp. 221 ], it was held, as stated in the syllabus, that “an award, made for the taking of real property in condemnation proceedings, takes the place of the land, and remains subject to mortgage or judgment liens to which the land was subject, and is payable to a receiver appointed in supplementary proceedings on a judgment against the owner of the land.” The point involved therein is really foreign to any issue here. The vital consideration involved in United States v. Dunnington, 146 U. S. 340 , [ 36 L. Ed. 996 , 13 Sup. Ct. Rep. 79 ], was that where lands are condemned for the use of the government, the United States discharges its whole duty to the owners by paying the amount awarded by the com

In McAllister v. Reel, 53 Mo. App. 81 , both the owner and a lessee were made defendants in condemnation proceedings. There was only one assessment for damages and it was in favor of the owner and was paid to him. Thereupon the lessee sued the owner to recover his share of the award as money had and received for his benefit. The court said: “We are satisfied that the plaintiff’s cause of action is well founded. The defendant admits that the plaintiff was his lessee; that the lease had several years to run; and that the larger portion of the house was condemned and removed. He also admits that he received the entire award. The report of the commissioners conclusively shows that the entire damages to the property were assessed. Certainly under this evidence the defendant has money in his hands which equitably and fairly belongs to the plaintiff and which the defendant must pay.” Of course, therein the lessee unquestionably had an interest in the land, and that interest was covered by the award of damages.

North Coast Ry. Co. v. Hess, 56 Wash. 335 , [ 105 Pac. 853 ], involved the question of the right of lienors of the land condemned to participate in the award of damages, and it was held that these various lienors had the same claim upon this fund for the satisfaction of their claims as they had against the land itself, notwithstanding the fact that their claim of record was only against the land.

Other cases to the same effect are cited, but they exhibit no special feature.

The precise situation here involved was not presented in any of the cases which we have examined, but we do not mean to hold, however, that it would not have been proper to in-

Moreover, when plaintiff made application to the court for an order authorizing it to take possession of and use the property described in the judgment of condemnation, appellant joined with the People’s Savings Bank in a written opposition to said application, in which they declared not only that said judgment was void in that it did not determine the names of the owners of the various interests and the value of their respective interests, but that the court was without jurisdiction to determine how much of said sum of one hundred and four thousand one hundred dollars either of the defendants was entitled to; that the value of the interest of either of said defendants had not been paid into court for them, and furthermore, that the “plaintiff should be prevented from in any manner injuring, taking possession of or interfering with the crop of fruit growing on said premises and now being harvested therefrom for the reason that the plaintiff herein is not entitled to such crop or any pari thereof.”

Of course, appellant is not estopped by the averments of said opposition, but it is worth mentioning as illustrating his attitude at the time of the trial. He was undoubtedly mistaken in certain respects in his position. He was probably right, though, in the contention that plaintiff was not “entitled” to said crop or any part thereof. At least, we cannot say that it was included in the judgment of condemnation or in the award of damages.

Our attention has not been called to any evidence in the record of the trial bearing upon the value of said crop. How can it be said that the verdict includes said value in the absence of any showing upon the subject? How can it be determined how much the jury concluded should be awarded for the emblements when they were not apprised of any such

It is quite apparent that if the court should attempt to carve out of the total award what might be supposed the jury intended for the crop, it would be simply groping in the dark.

Again, there seems to be no evidence in the record that appellant was prevented from harvesting the crop. He claims himself that he had the right to enter upon the lands to remove his crop, but there is nothing to show that he made an effort to do so. He states, also, that “he suffered no injury of any kind until the entry of the order of possession, then his right to the emblements ceased and his equitable right arose to resort to the money in place of resorting to the crop. If the possession had not been taken until after the crop was harvested, Komano would have had no claim upon the money.” It is difficult to understand how that circumstance could affect the question of whether the value of the crop was included in the verdict. But aside from that, there seems to be no evidence in the record that possession of the land was taken by plaintiff until after the crop was harvested. It is true that notice was given of an application for such possession to be heard on Monday, the twenty-seventh day of May, 1912, but the motion was not heard until November 11, 1912, and on that date the order was made authorizing “said plaintiff to take possession of and use the property taken and' condemned. ” This was long after the crop had been harvested, as the parties agree. Therefore, it would seem, according to appellant’s theory, that he has no claim' against the fund constituting the verdict.

Moreover, on July 1, 1912, appellant entered into a written agreement with plaintiff and two fruit companies, electing and agreeing to pursue a certain remedy for the enforcement of his declared claim, and he ought to abide by it. That agreement recites that the said judgment of condemnation had

It is not disputed that an action is now pending in the United States district court to determine who is entitled to this money.

Assuredly appellant could not thus voluntarily waive and surrender his claim to the possession of the property for the purpose of harvesting the crop, and then, for the reason that he was not in possession at the time of harvesting, maintain an action for a portion of the verdict of damages awarded by the jury. Independent of his possession at the time of harvest, his claim was either included or not included in the verdict. No one can say it was so included, as there was neither averment nor proof to indicate it. It was no part of the realty, his interest in said realty having terminated by agreement at the time of condemnation. His claim relates to personal property that became valuable after said verdict was found. If, therefore, said property had been or was appropriated by anyone subsequent to said judgment of condemnation, or appellant’s right to the possession of said personal property had been or was defeated, appellant’s redress would be against said party so appropriating the said property, or so defeating said right to the possession thereof. It would seem that he has no claim against the Reed Orchard Company. If any cause of action exists in his favor, he should reap the fruits of it in the said action pending in the federal court.

We see no reason to disturb the order of the lower court, and it is therefore affirmed.

Chipman, P. J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 12, 1917.