Opinion
9-1-1955
PEOPLE of the State of California Acting by and through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, * v. A. M. DUNN et al., Defendants, A. M. Dunn, Alvin D. Dunn, Myrtle M. Dunn, Defendants and Appellants. Civ. 5125.
James A. Moore, Oceanside, Geo. A. Westover, San Diego, for appellants. George C. Hadley, R. B. Pegram, Herbert J. Williams, Albert J. Day, Los Angeles, for respondent.
PEOPLE of the State of California Acting by and through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, *
v.
A. M. DUNN et al., Defendants,
A. M. Dunn, Alvin D. Dunn, Myrtle M. Dunn, Defendants and Appellants.
Sept. 1, 1955.
Hearing Grnated Oct. 26, 1955.
James A. Moore, Oceanside, Geo. A. Westover, San Diego, for appellants.
George C. Hadley, R. B. Pegram, Herbert J. Williams, Albert J. Day, Los Angeles, for respondent.
BARNARD, Presiding Justice.
This is an action to condemn certain land in connection with the construction of a traffic interchange on Highway 101 at the entrance to Camp Pendleton, a short distance north of Oceanside. Highway 101, running north and south, is intersected at this point by a heavily traveled road, being the main entrance to Camp Pendleton on the east. In making this improvement the Camp Pendleton road was to be depressed beneath Highway 101, and a system of ramps provided to permit a full interchange of traffic between the two highways, with a frontage road to serve certain property east of the highway and south of Camp Pendleton. In addition, San Rafeal Drive, the first north and south road east of the highway, was to be extended on into Camp Pendleton to provide an additional means of traffic to and from the camp, and by way of the interchange to the freeway.
Capistrano Drive, which was about a block and a half south of Camp Pendleton, led easterly from the highway, across San Rafeal Drive, and into a residential section. Prior to this improvement it furnished the only access from the highway to the property in question and the surrounding area. One purpose of this improvement was to eliminate the dangerous intersection of Capistrano Drive with the highway. The plaintiff had at some previous time purchased all of the access rights to Highway 101 from the abutting properties on the east, and had built a fence along the easterly line of the highway land running north from Capistrano Drive to the south edge of Camp Pendleton, where it joined a fence running east west along the south line of Camp Pendleton. About 100 feet south of the Camp Pendleton fence, Sunset Drive ran easterly from a dead end at this highway fence, across San Rafeal Drive, and into a residence section. San Rafeal Drive also came to a dead end at the Camp Pendleton fence, a short distance north of its intersection with Sunset Drive.
The plaintiff sought to condemn two small parcels, separated only by Sunset Drive at its dead end. The defendant owners owned a block of land bounded by Capistrano Drive on the south, plaintiff's fence on the west, Sunset Drive on the north, and San Rafeal Drive on the east. The frontage road included in the improvement to be made led from the highway into Capistrano Drive and also ran along the west end of this block, thus connecting Capistrano Drive with Sunset Drive which had previously dead-ended at the highway fence. This block was a little irregular in shape, being 200 feet wide from north to south and about 500 feet long from west to east. The westerly half of this block, approximately, had been zoned for commercial use and the easterly half for residential use. The entire block remained vacant up to the time of the trial of this action. By this action the plaintiff sought to condemn, as Parcel 1, a somewhat irregular piece at the westerly end of this block, being about one-fourth of the block and being about 200 feet north and south and 130 feet east and west.
The owner defendants also owned two lots on the north side of Sunset Drive. These lots constituted the westerly end of the narrow block lying between Sunset Drive and the Camp Pendleton fence, being immediately east of the highway fence. The plaintiff sought to condemn these two lots, as Parcel 2. Parcel 2 was about 100 feet square, and was bounded on the south by Sunset Drive, on the west by plaintiff's fence, and on the north by the Camp Pendleton fence. Its only outlet was to Sunset Drive where that street dead-ended at the plaintiff's fence. This parcel had been vacant and had been zoned for use as a one-family residence until about May 1, 1953, when at the request of the owner defendants it was changed to permit commercial use.
On July 31, 1953, the defendant owners leased Parcel 2 to three of the defendants, the owners agreeing to construct a building thereon for garage purposes. The lease was for a term of 25 years and called for a payment of $500 a month rent, the first and last months' being paid in advance, and providing that if the value of the dollar went up or down the rent should increase or decrease accordingly. Construction of this garage was started about August 1, and was pushed with unusual speed. At the time of the trial the owner defendants claimed to have expended some $12,000 on the building.
On August 19, 1953, the Highway Commission adopted a resolution determining that public interest and necessity required the condemnation of Parcels 1 and 2 for highway purposes. On August 25, 1953, this action was brought. The defendant owners answered alleging that the value of Parcel 1 was $30,000 and claiming $20,000 as severance damages in that connection. It was further alleged that the value of Parcel 2, with the partial building thereon, was $50,000. The lessee defendants answered separately, alleging that Parcel 2 was worth $90,000 and their leasehold interest was worth $75,000, and attaching a copy of the lease to their answer.
The action was tried in May, 1954, and the jury was taken to view the premises. The defendants produced two expert witnesses on values. One testified that the value of Parcel 1 was $32,000, and the other valued this Parcel 1 at $30,500 with $4,000 as the amount of the severance damage. Neither was able to see any benefits accruing to the remaainder of that block from the improvements to be made. One valued Parcel 2 with the building at $46,550, and the other at $24,500. The plaintiff also produced two expert witnesses on values. One valued Parcel 1 at $11,400, and testified that there was no severance damage and that the remaining property in that block was benefited in the sum of $4200. The other valued Parcel 1 at $8,340 with no severance damages, and with benefits to the remaining property in the sum of $5,000. The first of these witnesses valued Parcel 2 with the building at $15,200 and the second valued it at $15,000. The court submitted the issues as to the various values to the jury, which returned a verdict finding that the value of Parcel 1 was $11,000; that the severance damage to the remainder of that block resulting from the proposed improvement was $500; that the special benefits to the remainder of that block arising by reason of the construction of the proposed improvement was $2,000; and that the value of Parcel 2 with the building thereon was $15,000.
The court made findings on all pertinent issues, including and approving the verdict of the jury on the issues submitted to it. The owner defendants and the lessee defendants filed a stipulation that, insofar as Parcel 2 is concerned, judgment should be entered in favor of lessee defendants in the sum of $1,500 and in favor of the owner defendants in the sum of $13,500. On the same day, a judgment in condemnation was entered awarding condemnation to the plaintiff as to Parcel 1 upon the payment into court of $11,000 for the owner defendants, and awarding condemnation to the plaintiff as to Parcel 2 upon the payment into court of $15,000, of which $1,500 should be paid to the lessee defendants and the balance to the owner defendants, except for $29.02 taxes which should be paid to the county of San Diego. Three days later, a final order of condemnation was entered reciting that these amounts had been paid into court, and ordering the condemnation as to both parcels and that the title thereto should vest in the plaintiff in fee upon the recording of that order and judgment. The defendants made a motion for a new trial, which was denied. The owner defendants have appealed from the judgment in condemnation, with a purported appeal from the order denying a motion for a new trial.
The appellants first contend that the court erred in refusing to admit into evidence the lease of Parcel 2. It is argued that while this lease was not evidence of the net rental value of the property it was a probative fact which established the gross rental value, and that it was necessary for a witness to first know 'the probative fact of the gross rent or gross income' so that he could then deduct therefrom such items of expense as he thought proper in order to arrive at the net rental value of the property. In support of this contention several out of state cases are cited. It is argued that the case of City of Los Angeles v. Deacon, 119 Cal.App. 491, 7 P.2d 378, has no application here. The attempt to introduce this lease in evidence was made during the direct examination of one of the lessees who was called by the appellants. An objection to its introduction into evidence was sustained. The respondents concede that a different rule prevails in some other states, but argue that courts in this state have consistently held that while evidence of this nature is admissible on cross-examination it is not admissible upon the direct examination of a witness who is testifying with respect to values. They cite People v. La Macchia, 41 Cal.2d 738, 265 P.2d 15; Central Pacific Railroad Co. of California v. Pearson, 35 Cal. 247; De Freitas v. Town of Suisun City, 170 Cal. 263, 149 P. 553, and City of Los Angeles v. Deacon, 119 Cal.App. 491, 7 P.2d 378, and argue that by analogy these cases support the court's refusal to admit this lease into evidence at the time it was offered; and that in any event there was no prejudice. Whether or not the ruling objected to should, in a proper case, be held to be erroneous it rather clearly appears that no prejudice resulted here. The rule is well established that the exclusion of evidence is harmless where the fact to be proved thereby is amply proved by other evidence which is admitted and not stricken. Keppelman v. Heikes, 111 Cal.App.2d 475, 245 P.2d 54; 2 Cal.Jur., Appeal and Error, Sec. 608. Appellants' first valuation witness testified that he considered the lease value of the building, checking with other leases in the area; that he had seen the lease and knew its terms; that it provided for a rental of $500 a month; and that in arriving at his value of $46,550 for Parcel 2 he valued the land at $18,970, the uncompleted building at $12,580, and then added $15,000 for the 'bonus value' of the lease. Both of the valuation witnesses for the respondent testified that in making their investigations they considered this lease; and the terms of the lease were stated many times before the jury. There was also a great deal of testimony showing the bad financial condition of these lessees, that a number of unpaid judgments had been entered against them, and that they had been unable to pay their bills while operating a near-by garage in a much better location, just prior to the making of this lease. The evidence strongly supports the conclusion expressed by these witnesses as a result of their investigations, that Parcel 2 as it existed before these improvements was a very poor location for a garage or for any business, and that the value of the remainder of the appellant's property for business purposes was greatly enhanced by the making of these improvements, which made it much more easily and safely accessible with a much larger number of potential customers. Under the circumstances shown by the record, no possible prejudice appears in connection with this ruling, even if error be assumed.
It is next contended that the court erred in admitting into evidence a certified copy of certain minutes of the Oceanside City Council. These minutes, dated April 22, 1953, recite that a hearing was being held with respect to changing the two lots constituting Parcel 2 from Zone R-3 to Zone C-1, and state: 'The only protest against this proposed change was a letter from the Division of Highways, stating that in connection with certain plans the Highway Commission now has, this property would probably be needed by the State and that the proposed change of zone might make the State's work more expensive. Mr. Ray Wilcox, representing the owner of the lots, stated that the highway engineer's plans so far are only tentative; that these lots were not correctly zoned in the beginning and are the only parcel along Hill Street in this and adjacent blocks not in Zone C-1. Cmn Wright held that the State's work is a matter of traffic safety and should not be impeded. In the Mayor's opinion a change of zone should not add greatly to the value of the lots. Cmn Richardson, on the other hand, stated that as a matter of justice all the property owners along the street should be treated alike and the petitioner is entitled to be given the same zoning assigned to adjoining property.'
The minutes then recite that the zoning change was adopted, and the city attorney directed to prepare an amendment to the zoning ordinance accordingly. Incidentally, it should be observed that these two lots were not 'along Hill Street', and had not been for some time at least. It is argued that whether or not the appellants had knowledge of these contemplated improvements was immaterial, since formal action was not taken by the highway department until August. This exhibit was introduced during the testimony of one of respondent's valuation witnesses in connection with his recital of the investigation he had made in order to prepare himself to arrive at an opinion as to the fair market value of Parcel 2. The appellants had brought out the amount of the rent in their own evidence, and in the cross-examination of respondent's witnesses; and the respondent introduced evidence at considerable length to show that there was little or no prospect that this rent would be actually paid over an appreciable length of time, and that Parcel 2 was an extremely poor location for a garage. The purpose of this exhibit, and testimony relating thereto, was to show that the property had never produced any income; that it had only recently been rezoned for commercial use; and that these factors, together with other elements including the credit standing of the lessees, would affect the consideration that would be given to this lease by an informed buyer in fixing the amount he could afford to pay for the property. The objection to the introduction of this exhibit was apparently made out of the presence of the jury, and the record does not disclose upon what grounds the objection was made. The exhibit was admissible, at least in part, for some purposes and no prejudice appears. There was other evidence that the zoning had been changed about that time, admitted without objection, and considerable evidence to the effect that it was well known in the community that these improvements were about to be made.
It is further contended that it was improper to admit any evidence relating to the probability of rezoning some of the remaining land from which Parcel 1 was to be taken. It is argued that such evidence was pure conjecture, and that there was no proper foundation for the conclusion of one of respondent's witnesses with respect to this matter. Appellants' counsel had asked this witness on cross-examination as to his knowledge that the easterly half of the block in which Parcel 1 was situated was zoned R-3. On redirect, this witness was asked whether he had, in the course of his investigation, formed an opinion as to whether or not there was a reasonable probability of getting a part of the remainder of that block changed from R-3 to C-1. Appellants' counsel objected to this question upon the ground that no proper foundation had been laid, adding that 'There is no showing how he investigated. If he can show he made a good and reasonable investigation, then he can give an opinion on it.' The witness expressed an opinion that such a change in zoning was highly probable, testifying to facts disclosing a thorough and complete investigation. The evidence strongly supports the opinion expressed by the witness. This evidence came in in connection with the reasons given by the respondent's valuation witnesses for the opinion that there was no severance damages to the remainder of Parcel 1. The evidence was material on the issues being tried, and under the circumstances it cannot be held to have been erroneously admitted. Long Beach City High School Dist. of Los Angeles County v. Stewart, 30 Cal.2d 763, 185 P.2d 585, 173 A.L.R. 249. Aside from anything else, the reasons assigned by the city council for making the change of zone with respect to Parcel 2, which was made about May 1, would be much more persuasive for making a change enlarging the area for commercial use in the remainder of the block from which Parcel 1 was taken, and the evidence supports the opinion of these witnesses that there was a reasonable probability of such a change in the near future.
Some contention seems to be made that it was the function of the jury to inquire into the estate or interest of each of the defendants in order to apportion the value of the estate as between the owners of Parcel 2, and the lessees. Under section 1246.1 of the Code of Civil Procedure this was a matter to be considered in a subsequent stage of the proceedings, and one which became unnecessary in view of the stipulation entered into by the owners and the lessees which was filed in this action.
The verdict and judgment are amply supported by the evidence, and no prejudicial error appears. While the appellants had to return the money paid them by the lessees, they received the fair value of their land, and they were not entitled to be reimbursed for any loss resulting from an abortive attempt to create an artificial value. The judgment is affirmed, and the appeal from the order denying a new trial is dismissed.
MUSSELL, J., and SHELL, J. pro tem., concur. --------------- * Opinion vacated 297 P.2d 964.