Opinion
S.F. No. 1794.
May 22, 1901.
APPEAL from a judgment of the Superior Court of Alameda County and from an order denying a new trial. W E. Greene, Judge.
The facts are stated in the opinion of the court.
Alfred H. Cohen, for Appellant.
George T. Wright, and J.W. Goodwin, for Respondent.
Appeal from judgment in favor of proceeding, condemning certain lands in the city of Alameda for a public street and from an order denying defendant's motion for a new trial. The main contention of appellant is, that the act of March 6, 1889 (Stats. 1889, p. 70), is unconstitutional. The act has heretofore been before this court, and held to be valid (Davies v. Los Angeles, 86 Cal. 37); and again in a case, in which this appellant was plaintiff, involving the validity of the assessment for the purpose of paying for the right of way and improvement involved in this suit. (Cohen v. Alameda, 124 Cal. 504.)
It is not necessary to further discuss this point, as it is settled upon reasons fully stated in said cases. It is also settled in the latter case that the resolution of intention passed by the board of trustees of the city of Alameda sufficiently described the work, and the land necessary to be taken, and that the assessment was made upon all the lands of the district. In fact, the latter case may be here regarded us conclusive of the constitutionality of the act, and as settling the principal contentions of defendant as to irregularities in the assessment upon which the proceedings are based. We will notice such other objections as appear of importance.
It is claimed that the judgment is void because the record shows that the amount of money deposited in court does not include the costs of defendant. This would not show that the judgment is void. The judgment of condemnation is the final judgment. It became the duty of plaintiff to pay the money assessed as damages within thirty days after such judgment, or to deposit the same in court. (Code Civ. Proc., secs. 1251, 1252.) After payment has been made, the court must make a final order of condemnation. A copy of this order must be filed in the recorder's office of the county where the land is situated, and thereupon the title vests in the plaintiff for the purposes specified. (Code Civ. Proc., sec. 1253.) This order of final condemnation was made, and it recited that the amount of damages awarded had been deposited in court for defendant. The order was not appealed from, and was an order made after final judgment. (Los Angeles v. Pomeroy, 132 Cal. 340.) The code does not require the costs to be paid or deposited in court, but "the sum of money assessed" (Code Civ. Proc., sec. 1251; and costs may be allowed or not, in the discretion of the court. (Code Civ. Proc., sec. 1255.) It was the duty of defendant to allege and prove damages for improvements, if she claimed such damages. (Monterey County v. Cushing, 83 Cal. 510; San Diego Land etc. Co. v. Neale, 88 Cal. 55.)
It is argued with apparent earnestness that the finding of the court that the value of the land was the sum of $3,120, and of the improvements, $50, is not supported by the evidence. The witness Hanly testified, upon direct examination, that the value of the land was $3,500, but upon his cross-examination he withdrew this estimate, and placed it at $3,120. This was the only evidence upon the subject, and is sufficient to support the finding. It is admitted that he so testified, but it is claimed that he is not an expert. Several pages of the transcript are taken up with questions and answers tending to show the knowledge of the witness as to land values iii the neighborhood. We think the witness showed himself sufficiently qualified to give an opinion, and even if he was not an expert, his evidence is in the record, and there is nothing to contradict it. It is said that there is absolutely no evidence in the record as to damages to improvements Conceding this to be true, the defendant certainly cannot complain because given fifty dollars more than she was entitled to from the evidence. The finding does her no injury. The court found "that no damages will accrue to the portion of the lands of defendant, Emilie G. Cohen, not sought to be condemned by virtue of the severance therefrom of the portion to be condemned, and the construction of the improvements in the manner proposed by plaintiff."
It is said in appellant's brief, "There is positively no testimony as to whether said land will be damaged or not."
The witness Hanly was asked: "Does the circumstance of the extension of the street through the Cohen tract, as indicated on that exhibit `A,' cause any damage to be suffered by the lands on either side of the extension? Does it damage the land on either side?" The witness answered, "I should not consider that it did." This evidence supports the finding.
It is contended by appellant that the amount awarded her by the judgment of condemnation is less than the amount of the assessment that she was compelled to pay for her part of the expense of opening the street, and that the act is invalid because under its provisions the total expense of opening a street might be assessed against one person. This position cannot be maintained. The defendant had the right and the option of accepting from the commissioners the amount awarded her. She refused to do this, and took her chances upon the judgment in condemnation proceedings. If the judgment had been for more than the award of the commissioners, she would have been entitled to it; as it was for less, she must accept it. The statute provides a means by which the value of the property may be ascertained, and if the amount thus fixed is satisfactory to the owner, and he voluntarily conveys the right of way for such sum, the city would get title, without the expense and delay of a suit for condemnation. If the owner, however, is not satisfied, and refuses to accept the amount, or make the conveyance, the property may be condemned as in other cases. (Davies v. Los Angeles, 86 Cal. 48.)
Certain errors are claimed in the overruling of objections to questions asked by plaintiff of certain witnesses, and in sustaining plaintiff's objections to certain other questions asked by defendant of her witnesses. We have examined the argument of counsel in his brief, and see no reasons given therein to convince us of any erroneous ruling. It is not shown Whether, after an objection was overruled, the witness answered the question, or after an objection was sustained, the witness did not elsewhere testify to the fact sought to be elicited. The brief does not refer us to the folios or pages of the record where the alleged erroneous rulings may be found, and as the printed transcript contains 310 pages (930 folios), we have not the time, nor the inclination, to read it all for the purpose of discovering error. A party relying upon an erroneous ruling should point it out, and show that it is erroneous, referring to the folio and page where it can be examined. Much of the appellant's brief is devoted to argument as to alleged irregularities in the proceedings taken for the purpose of levying the assessment, and proceedings subsequent to the assessment.
As before stated, the principal irregularities complained of were passed upon in Cohen v. Alameda, 124 Cal. 504. But, aside from this, the action is not for the purpose of setting aside an assessment; nor is it an action to collect an assessment. It is a proceeding under the law of eminent domain, as laid down in the Code of Civil Procedure. All the alleged irregularities are collateral to the main issue. The act provides (sec. 18): —
"If any owner of land to be taken neglects or refuses to accept the warrant drawn in his favor, as aforesaid, or objects to the report as to the necessity of taking his land, the commissioners, with the approval of the city counsel, may cause proceedings to be taken for the condemnation thereof, as provided by law under the right of eminent domain. The complaint may aver that it is necessary for the city to take or damage and condemn the said lands, or an easement therein, as the case may be, without setting forth the proceedings herein provided for, and the resolution and ordinance ordering said work to be done shall be conclusive evidence of such necessity."
It will thus be seen that the act dispenses with proof of the regularity of the proceedings. If the resolution and ordinance are passed as in the act provided, the authority to bring the action exists. The answer of appellant sets forth the resolution and ordinance in full, and the court found that they were correctly set forth. They were regular in form, and, under the statute, are conclusive evidence of the public necessity for which the land is sought. In fact, the action may be brought under the general provisions of the Code of Civil Procedure relating to eminent domain. (Los Angeles v. Leavis, 119 Cal. 165; Santa Cruz v. Enright, 95 Cal. 105.)
If the proceedings in regard to levying the assessment in the district in which the street is to be opened should be conceded to be irregular, it does not follow that appellant would be injured. She alleges in her answer that she has certain property within the assessment district which was assessed. The district comprises only a portion of the city of Alameda, and if the assessment is void, then the damages awarded appellant might be paid from the general funds of the city. (Los Angeles v. Leavis, 119 Cal. 165.)
Appellant would, in such case, be benefited, and not injured, by the alleged irregular assessment. It was said in San Francisco v. Kiernan, 98 Cal. 623: "Whether the money thus tendered and paid into court for their use had been obtained by plaintiff through regular or irregular assessments on the property of others did not concern the appellants, nor affect the right of the plaintiff to condemn their lands which had not been assessed. The proceedings to assess and to enforce the payment of assessments are entirely distinct from actions to condemn land. There is no pretense that the money tendered was not the properly of plaintiff, nor that it did not amount to just compensation. Therefore the rights of the appellants in this action could not have been prejudiced by defects in proceedings to assess the property of others"
The same principle applies here. If the appellant's land is irregularly assessed, it could not for this reason be held that the portion sought for a public street should not be condemned. The plaintiff has the right to condemn property for public streets. Appellant has been brought into court and evidence introduced. The court found the amount of damages to which she is entitled, and the evidence sustains the finding. The amount has been deposited in court as found by the court in its final order of condemnation. This order has not been appealed from.
It is not the business of appellant to try the title of plaintiff to the $3,170. It is there for appellant, whether obtained by legal or illegal assessment.
The judgment and order are affirmed.
Hearing in Bank denied.