Hilltop Properties, Inc. v. State

Plaintiff appeals from the judgment dismissing its amended complaint after it failed to further amend said complaint to which defendant’s demurrer had been sustained. Plaintiff’s amended complaint purported to state two causes of action, one based on inverse condemnation, the other,

The essence of a cause of action is the existence of a primary right and one violation of that right, i.e., it arises out of an antecedent primary right and corresponding duty, and a breach of such primary right and duty by the person upon whom the duty rests. (Shell v. Schmidt, 126 Cal.App.2d 279 , 291 [ 272 P.2d 82 ]; Smith v. Minnesota Mut. Life Ins. Co., 86 Cal.App.2d 581 , 590 [ 195 P.2d 457 ]; Stryker v. Republic Pictures Corp., 108 Cal.App.2d 191 , 195 [ 238 P.2d 670 ]; Frost v. Witter, 132 Cal. 421 , 426 [ 64 P. 705 , 84 Am.St.Rep. 53 ]; Work v. County Nat. Bank etc. Co., 4 Cal.2d 532 , 540 [ 51 P.2d 90 ]; Wulfjen v. Dolton, 24 Cal.2d 891 , 895 [ 151 P.2d 846 ].) The primary right and duty and the delict or wrong constitute the cause of action in the legal sense. (South Shore Land Co. v. Petersen, 226 Cal.App.2d 725 , 740 [ 38 Cal.Rptr. 392 ]; Smith v. Minnesota Mut. Life Ins. Co., supra, p. 590.) “The cause of action is simply the obligation sought to be enforced.” (Panos v. Great Western Packing Co., 21 Cal.2d 636 , 638 [ 134 P.2d 242 ]; Eichler Homes of San Mateo, Inc. v. Superior Court, 55 Cal.2d 845 , 847 [ 13 Cal.Rptr. 194 , 361 P.2d 914 ].)

Inverse Condemnation

Although plaintiff, in its first cause of action, alleges that defendant “took for public purposes” the subject parcels, this allegation is a statement of a legal conclusion and not of ultimate fact. Accordingly, it is not deemed admitted by the demurrer nor must such allegation be regarded as true. Although pleaded somewhat ineptly, it is apparent that the theory of this cause of action is that the subject parcels

In Frustuck v. City of Fairfax, 212 Cal.App.2d 345 [ 28 Cal.Rptr. 357 ], this court had occasion to discuss the nature of an action in inverse condemnation. We there stated as follows : “The nature of the inverse condemnation suit is that the owner whose property is taken or damaged for a public use without the institution of a condemnation proceeding himself takes the procedural initiative by bringing an action for damages inherent in the particular taking or damaging. [Citations.] The inquiry posed by such an action is whether there has been a ‘taking . . . for a “public use” . . . .’ [Citation.] Such a taking is not restricted to a mere change of physical possession, but includes a permanent or temporary deprivation of the owner of the use or enjoyment of his land. [Citations.] Thus it may consist of an act of dispossession, or of acts of appropriation, destruction or damage. [Citations.] Accordingly, it may consist of a single act.” (P. 364.)

In Pacific Tel. & Tel. Co. v. Eshleman, 166 Cal. 640 , 644 [ 137 P. 1119 , Ann.Cas. 1915C 822, 50 L.R.A. N.S. 652 ], it was held that the ‘ ‘ taking ’ ’ of property within the meaning of the Constitution is not restricted to a mere change of physical possession, but includes a permanent or temporary deprivation of use to the owner, where such deprivation amounts to the abridgement or destruction, by reason of the actions of the state, of the lawful rights of an individual to the possession, use or enjoyment of his land. It has also been held that an undue restriction on the use of property is as much a taking for constitutional purposes as is an appropriation or destruction. (People v. Associated Oil Co., 211 Cal. 93 , 100 [ 294 P. 717 ].) These principles ave in accord with the general rule recognized in most jurisdictions “that a destruction, restriction, diminution, or interruption of the rights of ownership or of the common and necessary use and enjoyment of property in a lawful manner, lessening or destroying its value, may constitute a taking for which compensation must be made to the owner of the property. ...” (29 C.J.S., Eminent Domain, § 110, pp. 917, 918.) Accordingly, it is the rule that while it is not always necessary that there be an actual physical taking of any part of the property in order to have a taking, “it is necessary that there must be an invasion or an appropriation of some valuable property right which the landowner

It is not contended by plaintiff that there has been, in the instant ease, any actual or physical taking of its property. The precise question presented to us is whether the following facts constitute an invasion, appropriation, diminution or interruption of plaintiff’s right of ownership, or of the proper and legal use and enjoyment of its property, within the meaning of the law relating to inverse condemnation: (1) The initial determination by defendant that it would require two strips of plaintiff’s property in order to widen the highway; (2) the communication of this intention by defendant to plaintiff; (3) the preparation by plaintiff of subdivision maps reserving said strips from its property for such highway use “In compliance with the expressed needs of the defendant”; and (4) the development of plaintiff’s property by reserving therefrom the subject strips of land for the proposed highway use “at the specific instance, request, and requirement of the defendant. ...”

It is the general rule that a mere plotting or planning in anticipation of a public improvement is not a taking or damaging of the property affected. ( 64 A.L.R 546 ; 18 Am. Jur., Eminent Domain, § 144, p. 772; Hamer v. State Highway Com., supra, p. 872 .) In the article on Eminent Domain in American Jurisprudence, supra, it is stated that “In exceptional circumstances, however, as where a city does some unequivocal act evidencing an intention to open a proposed street, parkway, or other contemplated improvement, or where the prohibitory provisions of an ordinance or statute are such as actually to interfere with an owner’s use of his property, it is held that the acts amount to a taking in the constitutional sense.” (P. 772.) The authority for this principle is the annotation in American Law Reports above cited. This annotation cites two Pennsylvania cases in which this rule was applied.

In In re Philadelphia Parkway, 250 Pa. 257 [ 95 A. 429 ], it was held that a plotting or planning of a parkway may, when accompanied by other acts of the municipal authorities, create a situation so unusual and extraordinary as to constitute a taking which will entitle the owner to damages although

In another Pennsylvania ease, In re Sansom Street, 293 Pa. 483 [ 143 A. 134 ], the situation was also declared to be extraordinary. There an ordinance was adopted providing for the widening of a certain street and providing that after the confirmation of the new line on the city plan, it would be unlawful to erect a new building or rebuild or alter an existing one without receding to the new line insofar as the first floor was concerned, although it might be arcaded above a height of 16 feet from the pavement. As a result of this ordinance, the appellant, who owned an improved lot on this street and sought to rebuild upon his property, was left with a strip 2% feet wide outside the highway limits, on which small area it would be impossible to build under existing building regulations. In holding that under these facts the appellant was entitled to damages, the court stated that it was not necessary for the property owner to wait until recession actually took place since he could not recede for any practical purpose and the law would not require him to do the vain and useless thing of tearing down the existing building and erecting one which could not be used.

The latter ease clearly turns upon the enactment of an ordinance which by its terms prevents owners from building on a portion of their property because of the establishment of new building lines, where prior to the enactment thereof they had the right to build on all of the property. In such a situation it has also been held in several other jurisdictions that the passage of such an ordinance amounts to a taking of private prop

In Silva v. City & County of San Francisco, 87 Cal.App.2d 784 [ 198 P.2d 78 ], the plaintiff by way of an inverse condemnation action sought to recover damages for the anticipated future appropriation of a parcel of real property belonging to the estate of his decedent. The complaint alleged that the board of supervisors had declared that the city block on which the property of the plaintiff’s decedent was situated be taken away from private ownership for the purpose of constructing a public playground; that the lots therein “ ‘be secured from their respective owners by purchase, and condemnation proceedings when necessary; . . .’ ” (P. 786.) At the time of the filing of the complaint, the plaintiff’s property had not been appropriated, and on this basis the defendant demurred to the complaint, claiming that it failed to state a cause of action. The demurrer was sustained and judgment entered accordingly. On appeal this judgment was affirmed, the court stating as follows: “In the present case there has been no taking of the land—no entry or physical interference with plaintiff’s property. Compensation is not payable until there is a ‘taking,’ or progress is made in the contemplated improvement.” (P. 787.)

Also of interest is the Texas case of Kirschke v. City of Houston (Tex.Civ.App.) 330 S.W.2d 629 . There the plaintiffs sought damages against the city upon allegations in their complaint that they had been denied a building permit “because it appeared that said property would be needed for highway purposes ’ ’; that they requested the city to purchase the property and that the city refused to do so at that time;

The closest case, factually, to the case at bench which has come to our attention is Hamer v. State Highway Com., supra, 304 S.W.2d 869 . There the Missouri Supreme Court was called upon to consider a petition for damages which alleged essentially as follows: The plaintiff owner of land had started to develop it as a subdivision. In doing so he had laid out, planned and located the lots, streets, and sewer ways. Shortly thereafter he was “ ‘plainly, positively and factually’ ” told by agents of the State Highway Commission that a new highway was to be constructed over a part of his land and that he should not develop that part which was to be used for right-of-way purposes because if he did so the improvements placed thereon would be lost to him. (P. 870.) Upon examination of the commission’s plans and surveys for the proposed highway the plaintiff revised his own plans to conform to those of the commission. Negotiations then ensued for the purchase of a right-of-way over the plaintiff’s land and an offer was made to him. Shortly thereafter, and while the plaintiff was considering the offer, he was advised that the commission “ ‘had changed its mind,’ ” that the location of the proposed highway had been changed, and that no land of the plaintiff’s would be taken for highway purposes. (P. 870.)

In holding that these facts failed to state a cause of action for the taking or damaging of the plaintiff’s property for a public usé, the Missouri court concluded that no facts were alleged showing that the commission had in any way invaded or appropriated any valuable property right which the plaintiff possessed for the legal and proper use of his property. In its opinion the reviewing court stated as follows: ‘ ‘ The quantum of plaintiff’s interest in and the permissible use of his property has not in any way been reduced. What changes plaintiff made for the future use of his property in expecta

We are satisfied that in the light of the foregoing principles plaintiff has not alleged any facts from which it can reasonably be inferred that defendant has in any way invaded, appropriated, or interfered with plaintiff’s use or enjoyment of the subject property. The sum and substance of plaintiff’s claim is that at the request of defendant it voluntarily made changes in the development of its land in anticipation that the Bayshore Highway would be widened. There are no allegations of exceptional or extraordinary circumstances bringing the case within the purview of the Pennsylvania eases since we do not have an unequivocal act evidencing an intention to widen the highway followed by actual work done on the projected widening, nor do we have an act of compulsion or interference with the enjoyment of the land such as is present in the mandate of an ordinance as was the situation in In re Sansom Street. In view of the persuasive rationale of Hamer we are constrained to hold that the request by defendant that plaintiff withhold the subject strips of land from its development does not constitute an unequivocal act evidencing an intention to take them for public use. We do not believe, moreover, that the use of the word “requirement” in the allegation that the subject strips were withheld from development at defendant’s “specific instance, request, and requirement” can be taken as an allegation of compulsion so as to constitute the unequivocal act which might bring the case within the exception to the general rule. A reading of the complaint indicates that “requirement” was used in the connotation of need rather than of compulsion. Assuming arguendo that the subject word was used in the sense of compulsion it amounts to no more than a legal conclusion which under the rule hereinbefore discussed we are not required to accept as true. It should be here pointed out that the lower court sustained the demurrer with leave to amend and that plaintiff declined to do so. Accordingly, plaintiff elected to stand on its complaint and

Promissory Estoppel

In its “Second Cause of Action” plaintiff pleaded facts purporting to bring it within the ambit of the doctrine of promissory estoppel. The doctrine of promissory estoppel is stated in section 90 of the Restatement of Contracts as follows: “A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” This rule is applicable in California. (Drennan v. Star Paving Co., 51 Cal.2d 409 , 413 [ 333 P.2d 757 ]; Edmonds v. County of Los Angeles, 40 Cal.2d 642 , 653 [ 255 P.2d 772 ]; Hunter v. Sparling, 87 Cal.App.2d 711 , 725 [ 197 P.2d 807 ]; Frebank Co. v. White, 152 Cal.App.2d 522 , 525 [ 313 P.2d 633 ]; Morrison v. Home Savings & Loan Assn., 175 Cal.App.2d 765 , 768-769 [ 346 P.2d 917 ].) “The very purpose of section 90 is to make a promise binding even though there was no consideration ‘in the sense of something that is bargained for and given in exchange.’ [Citation.] Reasonable reliance serves to hold the offeror in lieu of the consideration ordinarily required to make the offer binding.” (Drennan v. Star Paving Co., supra, p. 414.) Promissory estoppel is a theory of recovery which is allowed where injustice can be avoided only by enforcement of the promise, this usually occurring where the plaintiff has made a complete and substantial change of position in reliance upon the promise. (De Zemplen v. Home Federal S. & L. Assn., 221 Cal.App.2d 197 , 207 [ 34 Cal.Rptr. 334 ].)

In the light of the foregoing principles our immediate inquiry is whether plaintiff’s amended complaint alleges sufficient facts to plead a promissory estoppel against defendant. It is therein alleged that defendant by and through its authorized agents promised plaintiff that if it “would reserve from its proposed subdivision” the subject strips of land defendant would proceed to purchase the said property for highway widening purposes at an agreed price of $12,820; that defendant should have and did reasonably expect “a substantial change of position by plaintiff in reliance upon said promise to purchase the said parcels”; that plaintiff in

Assuming the truth of the facts pleaded, as we must in considering the sufficiency of the subject pleading, a situation has been pleaded under which it would be proper to invoke the doctrine of promissory estoppel. The facts are sufficient to satisfy the essential requirement that there must be a promise upon which reliance may be based. (See Bard v. Kent, 19 Cal.2d 449 , 453 [ 122 P.2d 8 , 139 A.L.R 1032 ].) The facts pleaded are such as to show that promises and representations were made by defendant’s authorized agents, and a course of conduct indulged in by them, which led plaintiff to believe that defendant would purchase the two strips of land for $12,820; and that plaintiff relied upon such oral promise to its detriment. This detriment, pleaded in terms of the uselessness to which the subject strips of land have been rendered by reason of plaintiff’s reliance upon defendant’s promise, is such as to indicate that justice can be done only by enforcement of the promise.

It should be noted here that estoppel has been applied with some reluctance insofar as its application against a governmental body is concerned, since it is the general rule that a governmental agency may not be estopped by the conduct of its officers and employees. (Farrell v. County of Placer, 23 Cal.2d 624 , 627 [ 145 P.2d 570 , 153 A.L.R 323 ]; County of San Diego v. California Water etc. Co., 30 Cal.2d 817 , 825 [ 186 P.2d 124 , 175 A.L.R 747 ].) Estoppel has, however, been applied against the state or a governmental body in some exceptional eases or in situations where justice and right required it. (See Farrell v. County of Placer, supra, pp. 627-628; Tyra v. Board of Police etc. Comrs., 32 Cal.2d 666 , 671 [ 197 P.2d 710 ]; Lorenson v. City of Los Angeles, 41 Cal.2d 334 , 340 [ 260 P.2d 49 ]; Times-Mirror Co. v. Superior Court, 3 Cal.2d 309 , 328-329 [ 44 P.2d 547 ] ; City of Los Angeles v. Cohn, 101 Cal. 373 , 376-378 [ 35 P. 1002 ] ; McGee v. City of Los Angeles, 6 Cal.2d -390, 394 [ 57 P.2d 925 ] ; City of Los Angeles v. County of Los Angeles, 9 Cal.2d 624 . 630 [ 72 P.2d 138 , 113 A.L.R. 370 ].) In each of the last-cited cases the Supreme Court fashioned an exception to the general rule that estoppel is inapplicable against a governmental body and applied the exception to the particular facts of the ease. While each of these cases involved the application of an equitable estoppel, we are satisfied that in a case where

In San Diego the plaintiff brought an action to enjoin the flooding of a portion of a county highway, which flooding would result when the dam being constructed by the defendant, a public utility company, would be completed. The defendant contended at the trial and on appeal that the county by its conduct was estopped to obtain the relief sought. Specifically, the defendant claimed that the waiver by the plaintiff of damages from the defendant’s flooding of the highway (these waiver provisions were contained in two separate contracts entered into between the plaintiff and the defendant, by which the plaintiff obtained easements over portions of the defendant’s property) amounted to an implied in fact agreement to abandon the existing road and to relocate the whole road at the county’s own expense. The Supreme Court in affirming a judgment in favor of the plaintiff, held that estoppel could not be invoked against the county because to do so would operate to defeat the effective operation of a policy adopted to protect the public. The reviewing court there stated as follows: “Here, however, we are directly concerned with strong considerations of policy. The Legislature, for the protection of the public, has declared that a road may not be abandoned without notice, a hearing, and a finding that the road is unnecessary for present or prospective public use. Enforcement of a bare promise to abandon would not only mean a complete disregard of these salutary legislative requirements but would also be inconsistent with the additional policy against the making of contracts by a public body to exercise its discretionary governmental powers in a particular manner. By indirect enforcement of such a ‘contract’ the needs of persons using the highway might be ignored, and a method would be afforded by which officials and persons dealing with the agency could evade the law. (Cf., Miller v. McKinnon, 20 Cal.2d 83 , 88-90 [ 124 P.2d 34 , 140 A.L.R. 570 ].) ” (Pp. 826-827.) Although San Diego does not specifically mention “promissory estoppel’’ but merely refers to “estoppel,’’ it is clear from the opinion that the Supreme Court was dealing with the former species of estoppel since it specifically noted that the claim of estoppel was there based solely upon the theory that the acts of the county

Similarly, in McGee v. City of Los Angeles, supra, 6 Cal.2d 390 , an action in which plaintiff sought to recover the amount of the judgment awarded him in a condemnation proceeding which was subsequently abandoned by defendant city, the complaint alleged that the municipality proposed widening two intersecting streets; that the plaintiff was the owner of a parcel of improved real propery which fronted on both of these streets; that the city instituted condemnation proceedings to acquire that strip of the plaintiff’s property which fronted on one of the streets; that at the same time the city made it known to the plaintiff that it would shortly thereafter commence a second proceeding to condemn the strip of land which the plaintiff owned on the other street; that during the first condemnation proceeding, it was stipulated between the parties that the damages to be awarded to the plaintiff for his property and the building thereon should be divided into two amounts, part to be awarded in each condemnation action; that the first action proceeded to a final decree and the city paid the plaintiff the stipulated award therein; that the second action was commenced, proceeded to interlocutory decree and was subsequently abandoned; and that before the abandon