People ex rel. Department of Public Works v. Wasserman

This is an eminent domain proceeding brought to acquire for state highway purposes certain real property in Sonoma County just outside the city limits of Santa Rosa. The property condemned (Parcel 1) is a portion of a larger parcel owned by defendant Robert Wasserman and under lease to his codefendant Market Wholesale Grocery Co. (Market). After a jury trial, the court below entered a judgment in condemnation awarding all defendants as their interests may appear^[1] damages in the sum of $5,750 with interest.^[2] Wasserman and Market appeal from the judgment. In our separate consideration of the several questions raised on appeal, we discuss infra the facts pertinent to each. At this point we set forth the general factual background.

In the main, there is no dispute about the facts. Wasserman is the owner of certain property located just west of the Santa Rosa city limits and consisting of 54,380 square feet. It is leased^[3] to Market which conducts a wholesale grocery business thereon. There was testimony that the property had been similarly used since at least 1937 and that the highest and best use of the property in its before condition was for a wholesale grocery company.

The property is improved with a large warehouse containing offices. Alongside the structure is a paved yard used by Market for the parking and maneuvering of trucks in connection with its business. In its actual operation Market’s business involves the receipt of merchandise brought in by various truckers or picked up by Market itself, the internal handling of the same and its eventual distribution to grocers in the area. In short, Market takes merchandise in and ships it out. The operation of the business consists almost entirely of pick-ups and deliveries by large trucks and trailers. Prom this warehouse Market services an area extending as far north as Port Bragg, east to

The subject property is bounded on the north by Holbrook Street and on the east by Roberts Avenue. Iowa Street intersects Holbrook from the north immediately across from the property and Decoe Street similarly intersects^[4] Holbrook approximately 100 feet to the west of the western boundary of the property. Prior to the construction of the freeway for which Parcel 1 was taken, Iowa and Decoe Streets and Roberts Avenue were all through streets to the north by means of which defendants’ property had access to the general system of streets in Santa Rosa and the vicinity. The freeway, designated as Highway 12, runs in a general easterly and westerly direction just north of defendants’ property, thereby cutting across all of the aforementioned three streets. After the construction of the freeway, therefore, these three streets were closed south of the freeway,^[5] thus abolishing direct access from defendants’ property to any point north. Thus, before construction of the freeway, the shortest and most direct route to the central business section of Santa Rosa was north via Iowa Street or Roberts Avenue to West 3d Street and then east along West 3d. The alternate route, the one defendant Market and all its customers are now compelled to take, is south on Roberts Avenue, east on Sebastopol, then north on Olive and Railroad Streets to West 3d and then east on West 3d. This latter route is longer by approximately a third of a mile, involves heavy traffic on Sebastopol Avenue and requires a difficult left-hand turn from Roberts to proceed east on Sebastopol.

Condemnation was sought as to Parcel 1, a boomerang-shaped parcel at the northern tip of the property with an area of 3,960 square feet. The freeway itself was not to be built on any part of the land taken but, as previously noted, was to be located just north of it. The record shows that the part taken was being acquired not for the construction of the freeway proper but to "curve out” the intersection of Holbrook and Roberts so as to facilitate turning in that intersection. This was deemed necessary by plaintiff’s engineers since the freeway, by cutting across an angle of the intersection, would narrow it.

In rebuttal plaintiff presented two valuation witnesses : Hal Bolla, Jr., a local real estate appraiser and Michell N. Abram-son, a Santa Eosa realtor and appraiser. Bolla testified that the fair market value of the taken Parcel 1 was $1,600 and that there were severance damages in the amount of $3,100 to the remaining property. Abramson opined that the fair market value was $2,000 while concluding that there were no severance damages. His basis for this latter opinion was that in the after condition the general situation of the property would be very similar to what it had been prior to the taking; the existing conditions would not really be changed. Both witnesses testified that not only would the closing of streets not create any parking problems, it would really not at all affect the preconstruction parking situation. In fact, Abramson testified that as a result of the street closings the property in general would be “greatly improved” and specifically that the parking would be improved.^[6]

In addition to Bolla and Abramson, plaintiff called three other witnesses on the question of severance damages: Philip

The jury were thereupon instructed that any damages allegedly resulting from the closing of Roberts Avenue, Iowa Street and Decoe Street constituted noneompensable items of damage; that “the rule is well established that the severance damage in a case of this sort must be severance damage from the taking of the piece of property which is actually being condemned and the construction of the improvement on the piece of property as distinguished from construction of some general improvement at a distance removed therefrom ’ ’; and that evidence bearing upon such alleged damages was not to be considered by them.^[9] As a consequence, the testimony of defendants’ valuation witnesses Goslovich and McCluskey bearing upon this point was excluded and the opinions of said witnesses as to severance damages were reduced to the extent heretofore indicated.

The positions of the parties on appeal may be summarized as follows: Defendants contend that the closing of the above streets deprived their property of reasonable access to the

We think that the trial judge correctly applied Symons in the instant case and therefore properly excluded defendants ’ expert testimony which considered the closing of the streets by the freeway as an item of severance damages. The record clearly shows that Parcel 1 was not condemned in these proceedings for the freeway proper but merely to round out the curve abutting defendants’ property at the intersection of Roberts Avenue and Holbrook Street. This taking is analogous to the taking of the property in Symons for the purpose of rounding out the cul-de-sac. Here, as in that case, the taking was not for the construction of the freeway itself; here, as in that ease, the public improvement causing the damage in issue was located on the lands of other persons. We find ourselves as much under the compulsion of Symons as apparently the trial judge did.

As we have said, plaintiff, for reasons unknown to us, does not argue on appeal that the trial court’s ruling is sustainable on the authority of Symons. The parties therefore do not join issue on the crucial point decided below. Instead, both parties seem to have regarded the closing of the three streets as a potential basis of severance damages and to have raised the issue as to whether or not such condition constitutes a sub

As we point out infra (see fn. 12, infra), Breidert and Valenta were decided long after the trial of the instant case. Defendants seem to advance the thesis that these two cases abrogated the rule declared in Symons and thus make Symons inapplicable herein. Breidert discusses Symons in detail but does not state that the latter case is overruled or qualified in any way. Under the circumstances it would be presumptuous for us to say that Breidert (and Valenta which applied Breidert) had the effect of doing so. We therefore express no opinion as to whether, in a factual situation like the instant one, a condemnee by an appropriate pleading may engraft on such eminent domain proceedings an actionable claim for impairment of access or of view arising from the construction of an improvement on other lands where such claimed damages do not accrue to the condemnee’s property by reason of its severance from the portion condemned. (Code Civ. Proc., § 1248, subd. 2.) As noted below (see fn. 11, ante), because of the abbreviated clerk’s transcript before us, we have no way of knowing whether defendants attempted to assert such a claim. But it is abundantly clear to us from the record that the damages sought to be claimed and the testimony relevant thereto, which the court excluded, were proffered under the claim of severance damages. As such they were properly excluded.

Assuming arguendo that Symons should not control herein and that defendants are not thereby precluded from asserting impairment of access arising from the closing of the three streets by the construction of the freeway, nevertheless we have concluded that no substantial and actionable impairment of access has been shown.

The principles pertinent to easements of access have been

The argument has no merit and is fully answered by the remarks of the trial judge who, in denying one of defendants ’ motions to strike, made clear that his previous ruling did not mean that the before and after condition of the property could not be considered for any purpose.^[14]

Impairment of view.

Defendants next contend that the court erred in ruling that their easement of reasonable view was not substantially impaired.^[15] While defendants’ briefs appear to assert a right to a view from the property as well as a right to he viewed from the abutting streets, defendants made clear to us at oral argument that they seek recovery only for alleged impairment of a right to be viewed.

The rule is settled that the owner of real property abutting a public highway has an easement of reasonable view of his property from the highway and the destruction or impairment of that view is the destruction of a valuable property right. (People ex rel. Dept, of Public Works v. Ricciardi, supra, 23 Cal.2d 390 , 404; Williams v. Los Angeles Ry. Co. (1907) 150 Cal. 592 , 595 [ 89 P. 330 ]; People ex rel. Dept. of Public Works v. Lipari (1963) 213 Cal.App.2d 485 , 488 [ 28 Cal.Rptr. 808 ]; Goycoolea v. City of Los Angeles (1962) 207 Cal.App.2d 729 , 735 [ 24 Cal.Rptr. 719 ]; People v. Loop (1954) 127 Cal.App.2d 786 , 803 [ 274 P.2d 885 ]; 2 Nichols, Eminent Domain, § 5.72[1], pp. 109-110; 90 A.L.R. 793 , 794; 29A C.J.S., pp. 429-432; see People ex rel. Dept. of Public Works v. Stevenson & Co., supra, 190 Cal.App.2d 103 ,107-108.)

In the instant ease defendants argue that the view of their property from the north on Roberts Avenue was cut off by the

We need not resolve this dispute. We are of the opinion that under the rule announced in People ex rel. Dept. of Public Works v. Symons, supra, 54 Cal.2d 855 , any impairment of the view of defendants’ property from the north on Roberts Avenue was a noncompensable item of severance damages since the improvement causing such loss of view, the freeway itself, was not located on the property taken from these defendants.

As they did on the preceding issue, defendants contend that Symons is not applicable. Assuming arguendo that it is not, we nevertheless conclude that there is no impairment of view on the following basis. In the after condition there was nothing which impaired or diminished the visibility of defendants’ property in respect to persons travelling on either of the two streets abutting it—Holbrook or Roberts. There can be no impairment of visibility in respect to traffic on Roberts north of Holbrook since all such traffic has been cut off by the freeway under circumstances involving no substantial impairment

The right-of-way agreement.

Defendants next contend that the court erred in allowing direct and cross-examination regarding a right-of-way contract entered into between the state and defendant Wasserman.

The pertinent facts are as follows: The state had previously attempted to acquire Parcel 1 from Wasserman for $1,350 and to that end had obtained from him a right-of-way contract on June 17,1961, approximately six months before the commencement of the present action. The contract was signed by Wasserman and by the state’s right-of-way agent and supervising right-of-way agent, the latter of whom recommended it for approval. It was never signed by Market. It provided, among other things, that Wasserman was to “eliminate” any effect of the existing lease by delivering a quitclaim deed from Market to the state. This provision was never complied with. It developed that the right-of-way contract, although marked for identification (Exhibit 8), was never received in evidence.

On cross-examination, defendants’ witness Goslovich^[18] was asked if he was aware of the fact that Wasserman had signed a contract for the sale of the property for $1,350. Counsel for defendants thereupon objected on the ground that ‘ ‘ Offers of compromise are never admissible.” The objection was overruled and the witness replied that he had not heard of the contract and had not consulted with Wasserman about the value of the parcel. Nor could the witness recall the contract having been mentioned at a meeting attended by both Wasserman and himself. Throughout this cross-examination the trial judge considered the contract a valid subject for examination,

The lease.

It is urged that the court erred in allowing cross-examination of defendants’ witness Goslovich regarding the lease entered into between Wasserman and Market. This document had been received in evidence without objection during the direct examination of the witness. On cross-examination, plaintiff’s counsel, after questioning the witness about his relationship with the lessee, attempted to ask him about the provision in the lease dealing with condemnation proceedings^[19] for the announced purpose of showing the “bias and frame of mind of this witness. ...” Over objection, cross-examination then proceeded in a somewhat indefinite manner purportedly directed to the bias of the witness until the court finally interrupted: “Can’t you bring out what you are getting at by simply asking him if he wouldn’t like to see this rent reduced as a result of this lawsuit 9 ’ ’

The thrust of defendants’ present argument seems to be that as a result of such cross-examination the inference was improperly “planted” that Market was to receive some benefit from the eminent domain proceedings by way of a rent reduction. We do not agree. Although it was permissible to cross-examine the witness on the matter generally in order to show bias (see City of Santa Ana v. Harlin, supra, 99 Cal. 538 , 545 and other cases cited supra), it eventually developed that the lease provision referred to in the cross-examination was

Instructions on fair market value and severance damages.

Defendants contend that in instructing the jury the court erred by refusing to define “fair market value” and “severance damages.” Their argument is bifurcated: not only were their requested instructions on these subjects refused but, it is claimed, no instructions at all were given thereon.

The law is clear that instructions on points which have been sufficiently covered by other instructions may properly be refused although they are correctly drawn and applicable to the evidence. (Libby v. Dunston (1925) 72 Cal. App. 494 , 496 [ 237 P. 565 ]; Marques v. Hill (1961) 191 Cal.App.2d 777 , 780 [ 13 Cal.Rptr. 168 ].) “A party is not entitled to have the jury instructed in any particular phraseology, and may not complain on the ground that his requested instructions are refused if the court, of its own motion or otherwise, correctly announces the substance of the law applicable to the case. [Citation.]” (Luis v. Cavin (1948) 88 Cal.App.2d 107 , 115 [ 198 P.2d 563 ]; Lemere v. Safeway Stores, Inc. (1951) 102 Cal.App.2d 712 , 726-727 [ 228 P.2d 296 ]; People v. Magee (1963) 217 Cal.App.2d 443 , 469 [ 31 Cal.Rptr. 658 ], cert, denied 376 U.S. 925 [ 84 S.Ct. 688 , 11 L.Ed.2d 620 ].)

We have concluded that the court correctly and adequately instructed on the above subjects. The two instructions on fair market value set forth in the footnote^[20] are correct statements of the law on that subject. (See Sacramento

Comparable sale by Hudson.

Defendants next contend that the court erred in admitting testimony in regard to the sale of adjacent property as a comparable sale without foundation as to its free and voluntary nature. Plaintiff’s valuation witness Bolla testified without objection as to a sale by one Hudson to the State of California for $10,701 of property located immediately across the street from defendants’ property. After several questions along these lines, defendants finally interposed an objection on the ground that there was not “yet any proper foundation laid as to this sale being a free transaction insofar as the buyer and seller are concerned in this sale.” In response to the court’s

Refusal of defendants’ requested instruction No. 33.

Defendants claim that the court erred in refusing their requested instruction No. 33 set forth in the footnote.^[22] It is argued that since plaintiff’s witnesses had testified on the issue of severance damages that in the after condition of the property the parking situation would be as good as or better than it was in the before condition, the jury had a right to know that the county could prohibit or restrict parking.

Although a party to a lawsuit is entitled to have the jury instructed on all of his theories of the case which are presented by the pleadings and supported by the evidence (Phillips v. G. L. Truman Excavation Co. (1961) 55 Cal.2d 801 , 806 [ 13 Cal.Rptr. 401 , 362 P.2d 33 ]; Davis v. Erickson (1960) 53 Cal.2d 860 , 863 [ 3 Cal.Rptr. 567 , 350 P.2d 535 ]; Sills v. Los Angeles Transit Lines (1953) 40 Cal.2d 630 , 633 [ 255 P.2d 795 ]; Daniels v. City & County of San Francisco (1953) 40 Cal.2d 614 , 623 [ 255 P.2d 785 ]), nevertheless it is not only not proper, but is error, to instruct on a theory which is unsupported by the evidence. (Wagner v. Osborn (1964) 225 Cal.App.2d 36 , 49-50 [ 37 Cal.Rptr. 27 ]; Strandt v. Cannon (1938) 29 Cal.App.2d 509 , 513 [ 85 P.2d 160 ].)

In the instant case defendants fail to point out to us any evidence establishing the reasonable probability of any change of parking regulations. On the other hand plaintiff’s witness

Plaintiff’s instructions.

Finally, defendants contend that the court erred in giving plaintiff’s instructions Nos. H-l, E-4, E-11, D-7 and D-6. It is noteworthy that defendants make no claim that any of these instructions set forth incorrect statements of law. While defendants assert in a general way that each of the last four instructions finds no support in the evidence, they make no attempt to demonstrate the validity of this criticism by any fair summary of the evidence on the point.

1. As to instruction No. H-l set forth in the footnote^[23] defendants specifically complain that there was no issue of public necessity and that the instruction is susceptible of the interpretation that the court thought there was little damage in the case. While the issue of public necessity is not justiciable (People ex rel. Dept, of Public Works v. Chevalier (1959) 52 Cal.2d 299 , 306 [ 340 P.2d 598 ]; People ex rel. Dept. of Public Works v. Lagiss (1963) 223 Cal.App.2d 23 , 33 [ 35 Cal.Rptr. 554 ]), it was not improper for the court to call the jury’s attention to matters not involved in the case. (Tingley v. Times Mirror Co. (1907) 151 Cal. 1 , 28 [ 89 P. 1097 ]; 2 Witkin, Cal. Procedure (1954) p. 1787.) Under the circumstances, the instruction did not mislead the jury into thinking defendants suffered little damage.

2. We reject defendants' argument that instruction

3. Concerning the last three instructions (Nos. E-ll, D-7 and D-6), defendants make only a general complaint that they find no support in the evidence. No useful purpose would be served by setting them forth herein. Generally speaking No. E-11 instructed the jury not to consider what the property was worth to defendants for speculation or possible uses or what it was worth to plaintiff for highway purposes but only its fair market value; No. D-7 not to indulge in any speculation or conjecture in determining its fair market value; an'd No. D-6 that the owner’s unwillingness to sell, if any, does not affect fair market value. Defendants do not challenge these instructions as correct statements of law and do not point out how they were likely to mislead the jury.

Furthermore, assuming arguendo that it was error to give all or any of the above five instructions, such error would not compel a reversal herein in the absence of an affirmative showing that it was likely to mislead the jury. (Mehollin v. Ysuchiyama (1938) 11 Cal.2d 53 , 57 [ 77 P.2d 855 ] and cases therein cited; Sortino v. Loneoak (1944) 66 Cal.App.2d 876 , 883 [ 153 P.2d 428 ]; Trelut v. Kazarian (1952) 110 Cal. App.2d 506 , 512 [ 243 P.2d 104 ]; see 2 Witkin, Cal. Procedure (1954) p. 1800.)

The judgment is affirmed.

Molinari, J., and Sims, J., concurred.

A petition for a rehearing was denied April 11, 1966, and the opinion was modified as printed above. Appellants’ petition for a hearing by the Supreme Court was denied May 11, 1966.