Opinion
Rehearing Denied Nov. 5, 1963.
For Opinion on Hearing, see 39 Cal.Rptr. 903, 394 P.2d 719.
William Katz, Los Angeles, for appellants.
E. D. Yeomans and Walt A. Steiger, Los Angeles, for respondent Southern Pac. Co.
Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Arthur Karma, Deputy City Atty., for respondent City of Los Angeles.
FOX, Presiding Justice.
The demurrers of defendants to plaintiffs' amended complaint were sustained without leave to amend. Plaintiffs have appealed from the ensuing judgments of dismissal.
Plaintiffs are, respectively, the owners, lessors and lessee of a parcel of improved real property located in the City of Los Angeles at the southeasterly corner of Vaughn Street and the right of way of the Southern Pacific Railroad in the Pacoima area. The Southern Pacific right of way is 100 feet wide adjacent to and parallel with San Fernando Road on the easterly side thereof.
This property has a frontage of some 443 feet on the southerly side of Vaughn and approximately 628 feet on the easterly side of the railroad right of way. It is zoned M-2 (light manufacturing) and is improved with a one story factory building that is used for the manufacturing of air-conditioning equipment.
The Breiderts purchased this property in 1953. At that time and at all times since until April 3, 1959, Vaughn Street crossed the Southern Pacific right of way to San Fernando Road and was used by plaintiffs and the general public as a public street for access to San Ferando Road.
The city erected and for more than ten years maintained street signs at the intersection of the southerly line of Vaughn Street with San Fernando Road, and a standard stop sign at the intersection of the northerly line of Vaughn Street with San Fernando Road. In March 1954 the city council approved a public works commission report to upgrade Vaughn Street in accordance with public utility standards. In July 1955 the Southern Pacific Company delivered an easement deed of this intersection area to the Bureau of Right of Way and Land of the city. In August 1956 the city appropriated $15,400 as its share of the expenses of improving that portion of Vaughn which crossed the tracks of the Southern Pacific, and to install a crossing signal for traffic on San Fernando Road and Vaughn Street. The city, through its street maintenance department, from time to time asphalted and maintained in repair the portion of Vaughn that crossed the railroad right of way.
On or about April 3, 1959, the defendants installed barricades across Vaughn Street along the easterly and westerly lines of the railroad right of way, thus barring access to Vaughn Street from San Fernando Road and preventing the crossing of said railroad right of way to or from San Fernando Road. It is further alleged that While there are no allegations in the amended complaint of any action on the part of the Public Utilities Commission relative to the closing of this crossing, we may take judicial notice that the closure of the crossing was with the consent and approval of the Commission.
In the first three counts of their amended complaint plaintiffs sought damages for: (1) the taking and destruction of plaintiffs' asserted easement or right of way over that portion of Vaughn Street which crossed the railroad right of way; (2) the maintenance of a nuisance by reason of defendants' obstruction of said easement or right of way; and (3) inverse condemnation resulting from defendants' permanent appropriation of said easement r right of way. The fourth count is for declaratory relief.
In exploring the legal aspects of this case we start with the State constitutional provision (Art. I, sec. 14) that: 'Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for, the owner * * *.'
We next examine the cases to determine what property rights of plaintiffs, if any, the defendants have impaired or damaged by closing the crossing in question.
Nearly seventy years ago, our Supreme Court in Eachus v. Los Angeles, etc., Ry. Co., 103 Cal. 614, 617-618, 37 P. 750, noted that the right which the abutting owner has to the use of the street fronting upon his lot is defined to be an easement therein for the purposes of ingress and egress, which attaches to the lot, and in which he had a right of property as fully as that which he has in the lot itself, and that any act of the municipality by which that easement is destroyed or substantially impaired for the benefit of the public is a damage to the lot itself within the meaning of the constitutional provision, for which he is entitled to compensation.
In 1942 the court in Rose v. State of California, 19 Cal.2d 713, 123 P.2d 505, enlarged somewhat upon an abutting owner's rights. The court stated (19 Cal.2d pp. 727-728, 123 P.2d p. 515): 'The abutting owner's easement of access arises as a matter of law [citation], and its nature and extent have been set forth in the numerous decisions which have considered the question. Thus, it is established that the easement of access is as a matter of law peculiar to the individual owner, and an unreasonable interference with such an easement is an injury necessarily different from the injury suffered by the general public. [Citation.] It is an easement in the public highway upon which his land fronts. [Citations.] The right extends to a use of the highway for purposes of ingress and egress to his property by such modes of conveyance and travel as are appropriate to the highway and in such manner as is customary or reasonable.'
In 1943 this principle was again recognized and adopted in Bacich v. Board of Control, 23 Cal.2d 343, 144 P.2d 818, Beals v. City of Los Angeles, 23 Cal.2d 381, 144 P.2d 839; and People v. Ricciardi, 23 Cal.2d 390, 144 P.2d 799. In restating the principle the court in Bacich said (23 Cal.2d pp. 349-350, 144 P.2d p. 823): '[A]n owner of property abutting upon a public street has a property right in the nature of an easement in the street which is appurtenant to his abutting property and which is his private right, as distinguished from his right as a member of the public.' (Emphasis added.) (To the same effect, see People ex rel. Department of Public Works v. Russell, 48 Cal.2d 189, 195, 309 P.2d 10.) The court then made a definitive determination of the extent of an abutting property owner's right of access (23 Cal.2d p. 354, 144 P.2d p. 825); viz., that his 'right of access extends in both directions to the next intersecting street.' (Emphasis added.) Bacich was a cul-de-sac situation, that is, access to the next intersecting street in one Applying Bacich to the factual picture in the instant case, it is apparent that Bacich is in point in principle. Here the closing of the crossing cut off access to San Fernando Road which is he next intersecting street to the southwest of plaintiffs' property. Thus we have a cul-de-sac situation as in Bacich. The reasoning, the principles stated, and the holding in Bacich are therefore directly applicable in the instant case and unmistakably lead to the conclusion that plaintiffs' amended complaint states a cause of action.
Although there is language in People ex rel. Department of Public Works v. Symons, 54 Cal.2d 855, 9 Cal.Rptr. 363, 357 P.2d 451, that might indicate that that decision modified or limited Bacich, which is cited therein, counsel for defendants do not so contend.
The principle argument of the defendants (as phrased by the City) is: 'The Public Utilities Commission has the exclusive jurisdiction to determine the necessity for and to order the closing of any railroad grade crossing and its orders are not reviewable by the Superior Court.' Admittedly, the Public Utilities Commission has the exclusive power with respect to the opening and closing of grade crossings. Sections 1201 and 1202(b), Public Utilities Code, make this proposition crystal clear. See, also, City of San Mateo v. Railroad Comm., 9 Cal.2d 1, 6, 68 P.2d 713. But in advancing their position defendants miss the point in this case. Plaintiffs are not seeking an order to re-open the crossing but damages for an invasion of a property right by reason of the closing of the crossing. The power to determine whether there has been such an invasion, and, if so, the amount of damage that has been sustained, is for the courts. Both the Commission and the courts agree on this proposition. The Commission's position is stated in So. Pac. Co. & Western Pac. Co. (49 P.U.C. 735, 741, 742) in this language: 'The Commission's authority to require the closing of a grade crossing is well established. In such a proceeding, however, it is concerned only with the public interest in the continued maintenance, or discontinuance of the crossing. It is called upon to balance considerations of public safety, involved in permitting the crossing to remain open, against the public inconvenience which might result from its abolition. Its action must be ascribed to the police power. In a case such as this, it may not determine whether property owners have suffered any damage due to the closing of any crossing, nor may it undertake to fix the amount of such damages. These are matters which would fall within the jurisdiction of the courts. (S. H. Chase Lumber Co. v. Railroad [Comm.], 212 Cal. 691, 706 [300 P. 12].)' The respective areas of authority of the Commission and the courts in these matters are stated in the Chase Lumber Co.
'1. That the Railroad Commission has been granted power under the provisions of sections 22 and 23 of article 12 of the Constitution and of section 43, subd. a, of the Public Utilities Act to order the creation and construction of separated railroad grade crossings, subject to the right of the owners of private property to have their rights and interests in their private property taken, or damaged thereby, determined and the compensation therefor fixed and paid as provided in section 14 of article 1 of the Constitution and not otherwise.
The Southern Pacific says on this point that: 'Inasmuch as the Public Utilities Commission has 'exclusive power' to determine whether Vaughn Street shall or shall not cross defendant Southern Pacific's right of way, these plaintiffs, in First, Second and Fourth Causes of Action, do not state a cause of action that gives this Court jurisdiction over this defendant or over the subject of the action.'
'2. That the Railroad Commission has power in providing for such construction to order the municipality to proceed in the manner provided by law to close such public streets as may be required in order to effectuate the order of the commission providing for the construction of such crossing; and also has power to order the railroad company to institute proceedings in eminent domain for the condemnation of such of the property of private owners as may be taken or damaged as a result of the making and execution of such order and the fixation and payment of compensation therefor under the provisions of section 14 of article 1 of the state Constitution.
'3. That the Railroad Commission has no power to make or direct the execution of any order under the aforesaid provisions of sections 22, 23, and 23a of article 12 of the state Constitution or of section 43, subd. a, of the Public Utilities Act, which shall either by its terms provide for, or by the execution thereof, effectuate the taking or damage of the private property of private persons otherwise than under the provisions of section 14 of article 1 of the state Constitution, or which shall provide for or effectuate the taking or damage of such private rpoperty without compensation.'
In support of their contention that the Superior Court had no jurisdiction of this matter defendants rely on City of San Mateo v. Railroad Comm., 9 Cal.2d 1, 68 P.2d 713. This decision affirms, inter alia, the exclusive power of the Commission to abolish grade crossings by ordering that they be physically closed under the police power. But it does not follow from this decision that property rights may be destroyed or damaged without compensation. Bacich makes this point quite clear in its discussion of the San Mateo case. First, in Bacich (23 Cal.2d p. 354, 144 P.2d p. 825), the court noted: 'In City of San Mateo v. Railroad Commission, 9 Cal.2d 1, 68 P.2d 713, 718, it does not appear that the closing of the street placed the property owners on a cul-de-sac.' Second, the court further noted (id.): 'While that case [City of San Mateo] may hold that grade crossings may be eliminated pursuant to the police power, we do not interpret it as holding that property may be placed in a cul-de-sec by the construction of a public improvement without the payment of compensation.'
From the foregoing it is quite apparent that the trial court had jurisdiction of the subject matter of this action.
Defendants also argue that the third cause of action does not allege facts sufficient to state a cause of action in inverse condemnation because it does not appear that the property of plaintiffs that was assertedly taken was for a public use or purpose.
"Public use' within the meaning of section 14 [Art. I, California Constitution] is defined as a use which concerns the whole community or promotes the general interest in its relation to any legitimate object of government.' (Bauer v. County of Ventura, 45 Cal.2d 276, 284, 289 P.2d 1, 6; Frustuck v. City of Fairfax, 212 A.C.A. 346, 358, 28 Cal.Rptr. 357.) Here the obvious purpose of closing this crossing was in the interest of public safety which certainly is a legitimate object of government and therefore a proper public use.
Defendant Railroad Company argues that plaintiffs did not and could not have any property rights in the Vaughn Street crossing. Therefore they fail to state a cause of action on the theory of inverse condemnation. Finally, in oral argument counsel for the railroad company, relying on Constantine v. City of Sunnyvale, 91 Cal.App.2d 278, 204 P.2d 922, asserts that the remedy of plaintiffs, if they have any, is against the City, not against the railroad company. Counsel's reliance on Constantine in the context of the allegations of the amended complaint in the instant case in misplaced. Plaintiffs allege that the defendants 'erected, constructed and installed barricades across Vaughn Street * * *'; that 'the said barricades were erected, installed any constructed by defendants' in violation of the rights of plaintiffs; that the defendants 'in erecting and maintaining the barricades, have caused and are causing great and irreparable damage to the plaintiffs * * *'; that 'the defendants have taken and destroyed plaintiffs' easement or right of way across the railroad right of way' of the Southern Pacific. Both defendants are alleged to have been active participants in closing the crossing and thus destroying plaintiffs' rights as herein delineated. The railroad company cannot evade, or shift to the City, its legal responsibility for damaging plaintiffs' property rights. Under the allegations of the amended complaint, the damages are due to the concurrent acts of both defendants. This is sufficient to charge the railroad company with liability. (Talbott v. Turlock Irr. Dist., 217 Cal. 504, 506, 19 P.2d 980; Martin & Shaffer v. City of Martinsburg, 102 W.Va. 138, 134 S.E. 745, 747.)
The judgments are reversed with instructions to overrule the demurrers, and to permit the defendants a reasonable time in which to answer.
ASHBURN and HERNDON, JJ., concur.