People ex rel. Department of Public Works v. Vallejos

Appellants are the owners of a lot on which their home stands. It is near but not within the City of

Appellants argue, nevertheless, that the award is insufficient because, they say, deprivation of access is not their only loss, for the state has taken their one half of the street for a surface drainage channel and has built a fence between their lot and the channel. Appellants contend that the county has abandoned the street; that upon abandonment they, as owners of adjacent property, are entitled to the unencumbered fee out to the middle of the former street; and that the taking of this property by the state for the drainage channel is a wholly separate appropriation which must be paid for. It is stipulated by the parties that the value of the one-half part of the street, if it were vacated, would be $2,000. The state’s position is that the County of Los Angeles did not abandon the easement but .transferred it under law to the state, and that an easement for street purposes includes the function of drainage of surface waters.

Presentation of the Issue

There is a preliminary question, that is, whether the issue can be considered. Respondent contends that it was not before the trial court. During the trial, in which no testimony but lengthy arguments (related, in large part, to a nuisance theory, now abandoned) and certain documents were presented, the court granted a motion to amend appellants’ pleadings, apparently to include the issue which gives rise to this appeal. Amendment, however, was not actually accomplished. Amendment may be allowed during trial, without the formalities usually required for motions. (McKee v. Mires, 110 Cal.App.2d 517 , 522 [ 242 P.2d 954 ].) But an actual written amendment must be filed in order to comply with the requirements of pleading. The order allowing the amendment is not the equivalent of the amendment itself. (Central Cal. Creditors’ Assn. v. Seeley, 91 Cal.App. 327 , 331 [ 267 P. 138 ] ; Conroy v. Perez, 64 Cal.App.2d 217 , 228 [ 148 P.2d 680 ] ; Berkeley Crematory, Inc. v. City of El Cerrito, 146 Cal.App.2d 265 , 267 [ 303 P.2d 769 ].) Pleadings are the formal allegations by the parties of their respective claims

The statutory requirement of formal pleading is, nevertheless, subject to the exception that if the ease has been tried as if amendment had been filed, the issue which should have been stated formally will be considered on appeal. (Campagna v. Market Street Ry. Co., 24 Cal.2d 304 , 308 [ 149 P.2d 281 ]; Provost v. Worrall, 142 Cal.App.2d 367 , 373 [ 298 P.2d 726 ].) Although the issue was not stated with the clarity which would have been required of a written pleading, nor presented to the trial court in as satisfactory manner as it is on appeal, we find it fair to consider it. The findings state that a surface channel and fence will be constructed on the north one half of Choisser Street, and there is a stipulation that the value of the fee would be $2,000. These would not have been relevant if the present issue had not been put, although informally, before the trial court. Besides, the evidence consists wholly of documents.

Questions of law only are presented on the facts appearing in the record; wherefore, even a change in theory would be permitted on appeal. (Burdette v. Rollefson Constr. Co., 52 Cal.2d 720 , 725-726 [ 344 P.2d 307 ]; Ward v. Taggart, 51 Cal.2d 736 [ 336 P.2d 534 ]; Panopulos v. Maderis, 47 Cal.2d 337 , 341 [ 303 P.2d 738 ]; Estate of Hunter, 194 Cal.App.2d 859 , 862 [ 15 Cal.Rptr. 556 ].) The inadequacy of the pleading and the somewhat obscure presentation in the trial court of appellants' theory, therefore, do not bar our consideration of it.

Issue of Abandonment of the Street

Appellants’ claim is based on the proposition that Choisser Street has been abandoned, first by resolution of the board of supervisors, and second by actual closing of the street to traffic. The resolution recites: “Whereas, the County of Los Angeles and the State of California have heretofore entered into a Freeway Agreement [describing it]; and Whereas, further engineering studies indicate that the following revisions are desirable, to wit:...!. Provide effective closure as shown on the enclosed plan of the following County roads: . . .

Whenever there is abandonment of an easement or vacation of a highway where the county owns only an easement, the abandonment or vacation having been accomplished under sections 954-960.2 of the Streets and Highways Code, title to the easement reverts to the owner of the underlying fee by the express provision of section 960.3. But sections 100.2 and 941.2, relating to the closing of streets at or near their intersection with any freeway, do not make provision for reversion of the easement. Sections 100.2 and 941.2 operate independently of the other provisions. (Armas v. City of Oakland, supra, 183 Cal.App.2d 137 .)

Thus, what has happened to Choisser Street is that it remains part of the highway system, one half of it being used for traffic, the other half for drainage. The easement for drainage, as one function of a highway, has not been abandoned or extinguished. If appellants own the underlying fee, which it would seem respondent does not dispute, it is of but nominal value, because of the burden of the easement. (People ex rel. Dept. of Public Works v. Schultz Co., 123 Cal.App.2d 925 , 937-938 [ 268 P.2d 117 ].) For that which has been lost, access, payment has been made.

The judgment is affirmed.

Battigan, J., and Christian, J., concurred.

A petition for a rehearing was denied June 30, 1967, and appellants’ petition for a hearing by the Supreme Court was denied July 26, 1967.