City of Los Angeles v. Morris

This action was brought by the plaintiff to condemn land and take the same for public use for the opening, widening and extending of Fifth Street in the city of Los Angeles. The defendant Annie F. Young is the owner of land through which the extended street will run. Under the condemnation proceedings she is entitled to compensation for that part of her land taken for street purposes, and separately to compensation for damages to her adjoining land not taken for the public use. She appeals from the interlocutory judgment, entered pursuant to the verdict of a jury which assessed said compensation and damages, and appeals “from the order denying the motion of said defendant for a new trial, made, given and entered on or about the ninth day of July, 1923.” (Street Opening Act of 1903, sec. 13.)

[1] First we shall deal with the contention made by appellant that the court erred in determining that the compensation and damages to be awarded to her should be fixed and assessed as of the fifth day of December, 1921. The action was brought under the Street Opening Act of 1903. (Stats. 1903, p. 376, and subsequent amendments thereto;

The Code of Civil Procedure, in the title on eminent domain, at section 1249 of that code, establishes a general rule for condemnation proceedings in this state, with respect to the date from which compensation shall be assessed, as follows: “For the purpose of assessing compensation and damages the right thereof shall be deemed to have accrued at the date of the issuance of summons and its actual value at that date shall be the measure of compensation for all property to be actually taken, and the basis of damages to property not actually taken but injuriously affected, in all cases where such damages are allowed as provided in section 1248; provided, that in any case in which the issue is not tried within one year after the date of the commencement of the action, unless the delay is caused by the defendant, the compensation and damages shall be deemed to have accrued at the date of the trial.” The complaint in this action was filed on June 29, 1921. A summons was issued at some time not shown by the record. This appears from a default entry indorsed on the complaint under date December 14, 1921, which shows that prior thereto certain defendants were “regularly served with process.” It follows, by necessary inference, that the summons issued prior to December 5, 1921.

Appellant contends that the date as of which she was entitled to have the value of her property fixed for the purpose of assessing her compensation and damages was a time much later than December 5, 1921. Here it becomes necessary to set out some further history of the action.

September 29, 1921, answer of Annie F. Young and Pacific Mutual Life Insurance Company of California (mortgagee of Mrs. Young) was filed. November 28, 1921, notice

April 11, 1922, referees’ report returned to the court. March 31, 1922, trial as to appellant and mortgagee continued to May 8, 1922; and after further continuances was actually tried by jury on July 6, 1922, and the jury’s verdict duly filed and entered.

October 6, 1922, motions for new trial presented on behalf of the city and on behalf of Young and said mortgagee. New trial granted. Case transferred to department 10, which is the department of the presiding judge of said court.

October 9, 1922, under stipulation of the parties, case was regularly set down for trial for December 11, 1922’, and assigned to department 14 for trial with a jury. In that department several continuances were regularly made until April 23, 1923. On that day, Judge Charles Monroe presiding, a jury was regularly impaneled and sworn to try the case. At that point it was suggested and admitted that the judge then presiding was, by reason of some property interest, disqualified to try the case. Thereupon Judge Monroe discharged the jury. Immediately when that had been done Judge Charles Grail, then presiding judge of the superior court (department 10 thereof) “took the bench in said Department 14” and, over the objection of defendant Young and said mortgagee, continued the action for trial to the next day, April 24th, and assigned the ease to department 11 of said court, then presided over by Judge J. P. Wood. Said defendants thereupon objected to the trial being thus continued and demanded that the action, under the rules of the superior court, be transferred to the department of the presiding judge and be regularly reset

April 24, 1923, cause called for trial in department 11 before Judge Wood, who ordered that a new jury be impaneled. This order was made over the objection of appellant and said mortgagee. Thereupon a jury was impaneled and sworn to try the case, and the trial proceeded. Evidence was taken and such other proceedings were had that the jury returned the verdict pursuant to which the interlocutory judgment has been entered, from which judgment Mrs. Young now prosecutes this appeal.

It is the contention of appellant that the court erred in holding that the phrase, “the date of the order . . . setting the cause for trial,” in section 10 of the Street Opening Act of 1903, applied only to the first order (that is, the order of December 5, 1921), setting the cause for trial; and in holding that it so applied, not only for the purposes of the first trial, but also for the purposes of the second trial. ' The first trial (the trial of July 6, 1922), was had pursuant to the order of December 5, 1921, made by the presiding judge, setting the case down to be tried on March 31, 1922, said order being supplemented by continuances in department 15 until the actual date of said first trial. It is admitted by counsel that at that first trial the issue as to value was tried and determined as of December 5, 1921. There seems to be no doubt that, as applied to the trial then occurring, the date was so selected according to the statute. As above noted, there were some continuances from and after the date fixed by the original order, but it does not appear to have been contended that those orders of continuance entirely superseded the original “order setting the cause for trial”; they assumed its validity, and on that basis directed a postponement of the trial. The purpose of the legislation contained in section 10 of the statute was that prior to trial of the action a time be fixed, with relation to which the compensation to be awarded should be established according to the actual value of the property at the date so appointed. The issue of fact was thus made and settled for determination upon the evidence thereafter to be taken. We find in the statute nothing to indicate that the date, with relalion to which compensation shall be measured and damages assessed in such cases, shall

The conclusion indicated in the preceding paragraph is strengthened by a consideration of the general rule, "which has long been established in condemnation proceedings in California, providing for the assessment of compensation and damages as of the date of issuance of summons in the action. While a different rule has been set up in section 10 of the Street Opening Act of 1903, this rule should be construed, as nearly as may be, in harmony with the general rule. The supreme court followed this principle of decision in Marin Municipal Water District v. Marin Water and Power Co., 178 Cal. 308 , at 314, 315 [ 173 Pac. 469 ],

[2] Appellant makes the further suggestion that said section 10 of the Street Opening Act of 1903 is void by reason of uncertainty; that therefore the compensation should have been awarded under section 1249, Code of Civil Procedure; and that because the case was not tried within one year after the commencement of the action and because the delay was not caused by the defendant, her right to compensation and damages must be deemed to have accrued at the date of the second trial. It will be remembered that according to said section 10 the right to compensation aud damages “shall be deemed to have accrued at the date of the order appointing referees or of the order setting the cause for trial, as the case may be.” The statute (sec. 8, as amended by Stats. 1909, p. 1037) provides that

We conclude, therefore, that the court did not err in ruling that the values and damages should be fixed and assessed as of the fifth day of December, 1921, and did not err in limiting the evidence to the issue thus established for determination by the jury.

[3] Appellant contends that the orders of April 23, 1923, pursuant to which the action was continued to April 24th and assigned for trial in department 11, were irregular and erroneous in this, that the orders thus made by the presiding judge were made contrary to the provisions of rule XVII of the superior court of Los Angeles County. Bule III defines the duties of the presiding judge and, among other things, provides that he shall supervise the condition of the trial calendars of the court and shall readjust the assignment of causes at issue at or before the time of trial thereof in such manner as best to dispose of the business. Bule XVII reads as follows: “Civil actions at issue may be set for trial in the department of the presiding judge upon motion of a party, on 5 days’ written notice of such motion to the adverse party, or on motion based on stipulation of the parties. Such motion must be noticed for, and will be heard at 10 o’clock A. M., of any legal

[4] After the jury had been impaneled and sworn to try the case, the plaintiff requested that the jury be allowed to “view the premises” involved in this action. The defendant Young objected to this request and proposed order, on various grounds then and there stated by counsel. The court overruled the objections, “and the court thereupon ordered that the jury, before the taking of any evidence, should be allowed to and should view the premises involved herein: That the court did not at said or any time make any order as to who should accompany said jury, did not place said jury in the custody of the bailiff of the court, or any other party, and did not designate any person whatsoever as the party to show the jury the premises to bo viewed by them, particularly the property of Annie F. Young, herein sought to be condemned, and her property to be severed by virtue of such condemnation.” The transcript describes in much detail the proceedings relating to this transaction. In brief, it appears that the jury were taken to view the premises by the court, “together with the officials of the court, that all of the property which the jury were taken to see, they were taken to see at the direction and under the supervision of, and in the presence

In relation to the view of the premises taken as above stated, appellant contends that the court erred and that the required forms of law were not observed in this, that no person was appointed by the court, charged with the duty of showing the premises to the jury, in conformity with the provisions of section 610 of the Code of Civil Procedure. It should be noted first that, while appellant made sundry objections to the granting of any order for a view of the premises by the jury, she did not then, or during the viewing of the premises, or even when the trial was resumed in the courtroom, make any objection to the form of the order or the method of carrying that order into effect. We therefore agree with counsel for respondent that an objection of this nature, not made at a time when there was opportunity to correct the alleged error, should not be considered as a ground for reversal on appeal. (People v. Nakis, 184 Cal. 105 , 113 [ 193 Pac. 92 ]; People v. Pompa, 192 Cal. 412 , 422 [ 221 Pac. 198 ].)

[5] Appellant contends that the court erred in sustaining objections to certain questions propounded by her counsel on cross-examination of two of plaintiff’s witnesses. Each of these witnesses had stated his opinion of the values of the property involved herein on the fifth day of December, 1921. On cross-examination the witness Culver was not permitted to state what, in his opinion, was the value of the entire property of appellant on July 1, 1922, or what was its value on October 10, 1922. He did state, without objection, that the value increased after December 5, 1921, down to and including the time when his testimony was given. He further testified, without objection, that the market value of that property as a whole on April 1, 1922, had not increased more than five per cent over its value on December 5, 1921. The rulings on cross-examination of the witness Canfield present in substance the same question of law that is presented by those relating to the testimony of Culver, and need not be separately considered.

Appellant claims that she had a right to cross-examine each witness as to his opinion of values down to the date

Assuming that the view of the premises by the jury was in its nature a taking of evidence, the issue of fact nevertheless remained unchanged. It related to the value of the property on December 5, 1921, and not at any later time. Since the witnesses for respondent on their direct examination had not testified to any valuations of later date, the court was justified in confining the cross-examination to a period of time reasonably near to the date in question. We think that there was no abuse of discretion in the rulings which enforced that limitation. The stated purpose of counsel for appellant, as declared by him to the court, was to show not only the values at different dates running back to a time before December 5, 1921, but down to the date of the trial. The court was not bound to follow a course which would be likely to confuse the issue and unnecessarily extend the trial.

[6] There is some argument in which apparently appellant contends that the evidence does not sustain the verdict—although that assignment of error is not definitely stated in the brief. Our examination of the record has not led us into any doubt that the evidence is sufficient, except in one particular—and that doubt has been removed. The jury awarded $1,500 as damages caused by the severance of one parcel of appellant’s land from the condemned portion. The lowest amount given by any witness in actual figures relating to the damage to that parcel was $1,658. In view of this fact appellant contends that the evidence does not sustain this element of the verdict, and that the view of the premises by the jury, although in the nature of evidence, is not sufficient to create a conflict in the evidence so as to justify such a verdict. But even without any knowledge obtained by the jury in its view of the premises, the testimony of the witnesses as a whole justifies the jury in fixing said severance damage at $1,500. We quote from respondent’s brief, which we understand is in accord with the record: “MeGarry testified that the full value of this parcel, as a part of the whole, was $400

[7] Finally, appellant contends that the interlocutory judgment is void on its face because it is limited to a determination of the rights of appellant and her mortgagee, and does not contain any determination based upon confirmation of the report of the referees before whom the action was ordered to be tried for the purpose of assessing the compensation and damages of the other defendants. The argument on this point rests upon section 12 of the Street Opening Act of 1903 (as amended by Stats. 1909, p. 1040), which reads as follows:

“Upon the confirmation of the report of the referees, or receipt of the verdict of the jury, or the filing of the findings of the court, the court shall make and enter an interlocutory judgment in accordance with such report, verdict or findings, adjudging that upon payment to the respective parties, or into court for their benefit, of the several amounts found due them as compensation, and of the costs allowed to them, the property involved in the action shall be condemned to the use of the plaintiff, and dedicated to the use specified in the complaint. The court shall allow to the referees, as costs to be paid by the plaintiff, a reasonable compensation for their services, the amount of which compensation shall be fixed by the court upon the hearing ox the report, and their necessary expenses.”

We think that the rendering and entry of judgment as the same was entered was within the power of the court and was not void. Section 6 of said Street Opening Act provides that the action to condemn the property necessary to be taken for the stated purposes “shall in all respects be sub

The judgment and order are affirmed.

Hahn, J., pro iem., and Curtis, J., concurred.

A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 27, 1925.