Opinion
For Opinion on Rehearing, see 35 Cal.Rptr. 554. Holloway Jones, Jack M. Howard, Joseph F. DeMartini, Harry C. Miller, San Francisco, for the People, Robert E. Reed, Sacramento, of counsel.
Tinning & DeLap, Robert Eshleman, Martinez, for Anthony G. Lagiss.
MOLINARI, Justice.
This is an appeal by both parties to this litigation from specified portions of the judgment in an eminent domain proceeding.
Plaintiff below, the People of the State of California, acting by and through the Department of Public Works, will herein be referred to by the designation, 'plaintiff.' Defendant, Anthony G. Lagiss, will also be referred to by his designation below, namely, 'defendant.' The portions of the judgment from which each party appeals will be hereinafter particularly set out.
The Record
The present appeal grows out of an earlier appeal in the instant case decided by this court. In order to properly place the appeal now before us in its proper focus it will be necessary to set out a summary of the facts set forth in the previous appeal. These facts give us the background of the case as follows:
People ex rel. Department of Public Works v. Lagiss, 160 Cal.App.2d 28, 324 P.2d 926, hereinafter referred to as 'People v. Lagiss.' (Decided May 1958. Petition for hearing denied June 1958.)
After adoption by the California Highway Commission of the resolution of public interest and necessity required by Streets and Highways Code, section 102, this action was brought to condemn, for highway purposes, a parcel of land in Contra Costa County belonging to defendant. Defendant answered, denying that the whole of the parcel was needed by plaintiff for highway or any public purpose. Defendant further alleged in his answer, as amended, that the Commission in passing its resolution acted in bad faith and abused its discretion in that it knew or should have known that only a portion of the parcel was needed for any public purpose; that it is apparent from the face of the complaint that only the portion between the highway lines shown on the map was necessary and that there are no plans for or possible use of the remainder of said parcel; that the Commission and the department had no independent knowledge of the public necessity in acquiring all of said parcel and that its acquisition was for the sole purpose of depriving
Under the Streets and Highways Code the Department of Public Works, hereinafter sometimes referred to as 'the department,' cannot commence proceedings in eminent domain unless the California Highway Commission, hereinafter referred to as 'the Commission,' first adopts a resolution declaring that public interest and necessity require the acquisition, construction or completion by the state, acting through the department, of the improvement for which the real property is required. (§ 102.) The Department, plaintiff herein, is the condemning body for state highway purposes. (§ 102.) The Commission is a part of and an adjunct to the department (§ 70), and is the quasi-judicial body which determines the matters required to be declared in said resolution. (People v. Olsen, 109 Cal.App. 523, 530, 293 P. 645.)
On June 16, 1959, the Supreme Court in People ex rel. Department of Public Works v. Chevalier, 52 Cal.2d 299, 340 P.2d 598, held that the question of 'necessity' is not justiciable and disapproved any language in People v. Lagiss and other cases implying a contrary rule. (52 Cal.2d pp. 305, 307, 340 P.2d pp. 601-602, 603.) On June 22, 1959, a pretrial conference was had in the instant action. The pretrial order recites that the issues of public use and necessity having been raised, these issues would be heard by the court sitting without a jury at some time prior to the hearing on the issue of valuation wherein a jury trial was requested. It does not appear from the record whether Chevalier was then called to the attention of the court. When the cause came on for retrial on January 19, 1960, the trial court indicated that the questions before it were those of necessity and public use, and while it appears that counsel for both sides acknowledge that these issues were before the court, it also appears that the counsel for defendant did, in his opening statement, call the attention of the court to the holding in Chevalier to the effect that the question of necessity is not justiciable and that the sole issue before the court was that of public use. It appears, also, that the trial court at that time
Chevalier held that the condemning body's findings of necessity are not reviewable and cannot be affected by allegations that such findings were made as the result of fraud, bad faith or abuse of discretion. (52 Cal.2d p. 307, 340 P.2d p. 603.) This holding is predicated upon the provisions of Code of Civil Procedure, section 1241 and Streets and Highways Code, section 103 wherein it is provided that the condemning body's determination of necessity 'shall be conclusive evidence' thereof. Chevalier did recognize and hold, however, that fraud, bad faith and abuse of discretion may be shown on the question of 'public use.' The rationale of Chevalier is based upon a recognition of the distinction between the question of public use and the question of necessity. (52 Cal.2d p. 306, 340 P.2d pp. 602-603.)
Thereafter, plaintiff filed a document entitled 'Waiver,' in the court below, reciting that plaintiff was desirous of obviating the expense incident to the retrial of the issue of compensation and that it was therefore waiving its right to claim any value for that portion of defendant's property not to be condemned, and that it was conceding, for purposes of the waiver, that the said remaining property be considered to have suffered total damage. The said 'Waiver' was conditioned upon the issue of compensation being removed by entry of judgment upon the verdict reached by the jury in the first trial. Plaintiff thereupon moved for entry of judgment in accordance with the tenor of said 'Waiver,' which motion was granted after a hearing thereon. The trial court thereupon on April 13, 1961, made and filed its 'Findings of Fact and Conclusions of Law,' incorporating by reference its previous 'Findings of Fact and Conclusions of Law' and finding further as follows: that no public use is being made or was intended to be made of other than a portion of the said parcel, which portion it therein particularly described; that only the portion of said parcel thereafter particularly described 'is needed' for State highway purposes; that the taking in condemnation of the said portion is and was necessary for a public use; that pursuant to the verdict of the jury therein the value of the whole of the parcel described in plaintiff's complaint is the sum of $10,000; and that in view of plaintiff's waiver on file conceding that the portion not to be condemned may be considered to have suffered total damage, the court took judicial notice of and found that the portion condemned, being a part of the whole parcel found by the jury to be of the value of $10,000, together with maximum severance damages, cannot exceed the value of the whole of said parcel. The trial court thereupon concluded: that the portion decreed to be taken be condemned in fee absolute for highway purposes; that defendant The Issue of Public Necessity
These findings constitute the actual decision of the court (Code Civ.Proc. § 632), the court having the power to amend or change its findings of fact and conclusions of law at any time prior to the entry of judgment. (Brownell v. Superior Court, 157 Cal. 703, 708, 109 P. 91; Phillips v. Phillips, 41 Cal.2d 869, 874, 264 P.2d 926; Wilson v. Los Angeles County Employees Assn., 127 Cal.App.2d 285, 289, 273 P.2d 824.)
As we have hereinbefore indicated, People v. Chevalier, supra, 52 Cal.2d 299, 340 P.2d 598, unequivocally holds that the issue of necessity is not justiciable. The Supreme Court there noted that the only limitations placed upon the right of eminent domain by the California Constitution (art. I, § 14), and the United States Constitution (Fourteenth Amendment), are that the taking be for 'a 'public use" and that "just compensation" be paid for such taking. (52 Cal.2d p. 304, 340 P.2d p. 601.) 'Each of these limitations,' said the Supreme Court, 'creates a justiciable issue in eminent domain proceedings. But 'all other questions involved in the taking of private property are of a legislative nature.'' (52 Cal.2d p. 304, 340 P.2d p. 601; citing University of So. California v. Robbins, 1 Cal.App.2d 523, 525, 37 P.2d 163.) The reviewing court, in Chevalier, directed attention to the provisions of Code of Civil Procedure, section 1241 and Streets and Highways Code, section 103 declaring that the resolution of the condemning body finding public necessity is conclusive evidence thereof, and cited Rindge Co. v. County of Los Angeles, 262 U.S. 700, 43 S.Ct. 689, 67 L.Ed. 1186, upholding the constitutionality of this conclusive presumption. In Rindge Co., the United States Supreme Court said: 'That the necessity and expediency of taking property for public use is a legislative and not a judicial question is not open to discussion. * * * The question is purely political, does not require a hearing, and is not the subject of judicial inquiry.' (262 U.S. p. 709, 43 S.Ct. p. 693, 67 L.Ed. 1186.) It was error, therefore, for the trial court in the present case to have received evidence and to make findings thereon on the issue of public necessity. Chevalier points out that the question of public use is often confused with the question of necessity, particularly in those instances, in which the property owner contends that the condemning body is seeking to take more land than it intends to put to a public use. The crux of the question in the instant case, however, is whether the taking is for a public use and whether the condemnor is guilty of fraud, bad faith or abuse of discretion in the sense that it does not actually intend to use the property as it resolved to use it. Before turning to this question we must first dispose of defendant's contention that People v. Lagiss is the 'law of the case.'
There is ample evidence to sustain a finding that the disputed portion of the parcel sought to be condemned was not 'needed' for the use resolved were such issue justiciable. We need not reiterate such evidence here. Suffice it to say, there was substantial evidence that several of plaintiff's agents, acting within the scope of their authority, made representations to defendant, prior to the adoption of the resolution declaring that it was necessary to take the whole parcel, that such disputed portion was not necessary for highway purposes and that if defendant would waive severance damages to the portion not condemned the condemning body would not include such portion in its said resolution.
As stated by Witkin: 'The doctrine of 'law of the case' deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal Tally v. Ganahl,
England v. Hospital of Good Samaritan, Vangel v. Vangel, Wicktor v. County of Los Angeles, Standard Oil Co. v. Johnson, Gore v. Bingaman, Subsequent Injuries Fund v. Industrial Accident Comm.,The Issue of Public Use
The complaint in the present case sets forth in haec verba the resolution of the Commission stating public interest and necessity with respect to the acquisition of the parcel in question 'for State highway purposes * * *.' (Emphasis added.) The taking of property for use as a public highway is a purpose authorized by Code of Civil Procedure, section 1238, subd. 3, and is clearly for an established public use. (See Chevalier, supra, 52 Cal.2d p. 304, 340 P.2d p. 601; County of San Mateo v. Coburn, 130 Cal. 631, 635, 63 P. 78, 621.) This resolution was offered in evidence by plaintiff at the commencement of the trial and was admitted in evidence without objection. Such a resolution is prima facie evidence that the taking is in fact for a public purpose (County of San Mateo v. Bartole, 184 Cal.App.2d 422, 432, 7 Cal.Rptr. 569); and the determination therein that the taking is for a public purpose, declared proper for eminent domain proceedings by the state, may not be disputed in the absence of fraud, bad faith, or abuse of discretion on the part of the condemning body. (Chevalier, supra, 52 Cal.2d p. 304, 340 P.2d p. 601; Bartole, supra, 184 Cal.App.2d p. 433, 7 Cal.Rptr. p. 576; People v. Milton, 35 Cal.App.2d 549, 552, 96 P.2d 159; People v. Olsen, 109 Cal.App. 523, 531, 293 P. 645; and Rindge Co. v. County of Los Angeles, supra, 262 U.S. 700, 43 S.Ct. 689, 67 L.Ed. 1186.) The issues of fraud, bad faith or abuse of discretion must, however, be affirmatively framed or raised by appropriate and adequate pleadings. Chevalier, supra; Bartole, supra; Milton, supra; Olsen, supra; County of Los Angeles v. Bartlett, 203 Cal.App.2d 523, 531, 21 Cal.Rptr. 776; People v. Lagiss, supra, 160 Cal.App.2d p. 33, 324 P.2d pp. 929-930; People ex rel. Dept. of Public Works v. Schultz Co., 123 Cal.App.2d 925, 941, 268 P.2d 117; People v. Thomas, 108 Cal.App.2d 832, 836, 239 P.2d 914.) Accordingly, it has been Lavine v. Jessup,
In the case at bench defendant did not plead the defense of fraud, bad faith or abuse of discretion in his third amended answer. This answer was merely a general denial of the allegations of the complaint and therefore would not, under the authorities above alluded to, raise these defenses. As we have indicated above, however, it was held in People v. Lagiss that these defenses had not been waived in view of the repeated attempts made by defendant to plead them. It appears, moreover, that although no attempt was made to amend the answer to plead such defenses prior to the retrial of the instant case, it is clear that counsel for the respective parties and the trial court considered the holding in People v. Lagiss to be the 'law of the case.' Accordingly, the cause was tried upon the theory that the affirmative defenses of bad faith and abuse of discretion were before the court. It was proper for the trial court, furthermore, to consider these defenses relative to the issue of public use pursuant to the time honored rule that where the parties and the court proceed throughout the trial upon a theory that a certain issue is presented for adjudication, the doctrine of estoppel precludes either party from thereafter asserting that no such issue was in controversy, even though it was not actually raised by the pleadings. (Miller v. Peters, 37 Cal.2d 89, 93, 230 P.2d 803; People v. Nahabedian, 171 Cal.App.2d 302, 306, 340 P.2d 1053; People v. Lucas, 155 Cal.App.2d 1, 5, 317 P.2d 104.)
The answers containing defendant's said affirmative defenses which were stricken and rejected by the trial court prior to the first trial were not included in the clerk's transcript on appeal. These defenses are, however, set out in People v. Lagiss. They do not include fraud, but they do include bad faith and abuse of discretion. The facts alleged to constitute bad faith and abuse of discretion have been hereinabove set out in the narrative of the record in the present case.
In the case at bench we thus have a prima facie case established by plaintiff that the taking of the entire parcel in question was for a public use. It was therefore incumbent upon defendant to overcome this prima facie showing by establishing either or both of his affirmative defenses of bad faith and abuse of discretion by a preponderance of the evidence, the burden of proof as to such defenses being upon him. (Code Civ.Proc. §§ 1869, 1981; Witkin, Cal. Evidence, § 56, pp. 72-73.) In attempting to establish his claim of bad faith and abuse of discretion defendant directed most of the evidence adduced by him towards proof of the fact that plaintiff did not need the disputed portion for highway purposes. It is defendant's claim that plaintiff was guilty of bad faith and abuse of discretion in its attempt to secure from him a waiver of severance damages in exchange for an agreement on the part of plaintiff not to take the disputed portion. Such conduct, contends defendant, amounts to a coercion to compel a settlement on plaintiff's terms. Accordingly, it is defendant's County of Los Angeles v. Rindge Co.,
County of Los Angeles v. Bartlett,The trial court permitted both parties the widest latitude in offering evidence for the purpose of showing whether the disputed portion was necessary for highway purposes. Accordingly, most of defendant's evidence was directed towards the proof that plaintiff was seeking to acquire land in excess of that necessary for the designated purpose. It appears, therefore, that to a considerable degree the trial court and respective counsel confused 'necessity' with 'public use.' The character of the use, and not its extent, determines the question of public use. (Stratford Irr. Dist. v. Empire Water Co., 44 Cal.App.2d 61, 67, 111 P.2d 957.) It is necessary, therefore, to distinguish between the amount of land and the necessity for its condemnation, as contrasted with the proposed purpose for which it is to be used. The necessity for the construction of a highway at the place designated and in the manner determined by the Commission, together with the amount of land required therefor, are matters which were conclusively established by the adoption of the resolution. The question as to whether the land was to be devoted to a public use, however, as distinguished from private purposes or to accomplish some purpose which is not public in character, became a proper issue for the judicial determination of the court. (People v. Nahabedian, supra, 171 Cal.App.2d 302, 308, 340 P.2d 1053; County of San Mateo v. Coburn, supra, 130 Cal. 631, 634, 63 P. 78, 621.)
The nub of the inquiry is whether defendant has affirmatively established bad faith or abuse of discretion in the sense that the condemnor does not actually intend to use the property as it resolved to use it. Stated another way, it was proper for defendant to introduce relevant evidence tending to show the 'real purpose' of the condemnation proceedings, i. e., whether it was plaintiff's 'real purpose' to take part of defendant's property, not for highway purposes, but for private purposes or a public purpose not related to the highway project. Our attention, then is directed to ascertaining whether there is any substantial evidence in the record which will support a finding that plaintiff does not intend to use the disputed portion for highway purposes.
The evidence in the present case pertaining to the events leading up to the adoption of the resolution discloses the following: plaintiff originally intended to take the entire parcel for highway purposes; during the course of negotiations for purchase of the parcel defendant evinced a desire to retain a portion of the parcel; this portion was not to be used for the highway itself but had utility related to the highway in that it made for a better appearance, increased the sight distance, and improved drainage conditions; plaintiff's engineers concluded that they could
The record discloses, further, that the Commission adopted the resolution upon the recommendation made by the plaintiff department that the entire parcel was needed for a public use. Considerable evidence was also adduced as to whether the disputed portion was needed for sight distance. Here again the parties were litigating necessity. The fact that plaintiff was utilizing more land for sight distance than was needed for highway purposes does not militate against its public use as long as it was in fact used for sight distance purposes. The evidence is also clear that the subject highway had been completed at the time of trial, and that the disputed portion was then being utilized for sight distance, thus contributing to highway safety, and that it was useful to the highway from the standpoint of drainage, slope and appearance. These factors of utility are related to the highway project and are, therefore, consistent with public use. We do, however, have significant testimony in the record from which the trial court was entitled to infer that plaintiff does not intend to use the disputed portion for the highway purposes resolved by the Commission. Plaintiff's Metropolitan District Right of Way Agent, Mr. Daniels, testified that plaintiff's intention is to treat this disputed portion as excess property when this litigation is settled and determined, and that then a decision will be made whether to turn it over to the County of Contra Costa or to sell it to an adjoining cemetery. This testimony is susceptible of the inference that plaintiff did not intend to devote the disputed portion to highway purposes when it made its recommendation to the Commission, but that it intended to turn it over to the County of Contra Costa for whatever use it might wish to put it, or that it intended to sell it to the cemetery for a private use. Both such purposes are contrary to the purport of the resolution; moreover, the taking for a private purpose People v. Nahabedian,
Mr. Daniels testified as follows in response to a question put by defendant's counsel:
Plaintiff asserts that this latter disposition is warranted and provided for by the California Constitution, article 1, section 14 1/2. This section has been construed to provide that in acquiring lands by gift, purchase or condemnation for memorial grounds, streets, squares or parkways, the state or any of its cities or counties may acquire additional lands, within, in certain cases 150 feet, and in other cases within 200 feet, of the proposed improvement, and after the improvement is completed may sell the excess land not necessary for such improvement, with reservations concerning the use of such land so as to protect the improvement and to preserve its view, appearance, light, air and usefulness. (Redevelopment Agency of City and County of San Francisco v. Hayes, 122 Cal.App.2d 777, 810, 266 P.2d 105.) As pointed out in Hayes, this section is limited to memorial grounds, streets, squares and parkways. The intent of this section, as we view it, was to provide for excess condemnation of land not necessary for a public use within the limitations therein specified. By the enactment of this section in 1928, the people of this state extended the right of eminent domain which had theretofore been limited by article 1, section 14 of the California Constitution to the taking only of private property which was necessary for a public use. This is apparent from the title to Senate Constitutional Amendment No. 16 (Stats.1927, ch. 65, p. 2371), (the means by which section 14 1/2 was placed on the ballot) which states that it is a resolution to propose to the people as an addition to the Constitution a section 'relating to the taking of parcels of land by eminent domain where such border upon public improvements.' (Emphasis ours.) Moreover, an examination of the argument to voters concerning the proposed section (see part I, p. 17 of Arguments to Voters for the election of November 6, 1928) clearly shows that the section was intended to apply to "little fractions of lots in the form of slivers or small triangles" left after making the particular improvements mentioned in this section. (Hayes, supra, 122 Cal.App.2d Plaintiff contends that section 14 1/2 is applicable here, and that its intentions are compatible with this section. We do not agree with the assertion. Plaintiff has maintained throughout this litigation, and is still so maintaining on this appeal, that the entire parcel was necessary for a public use. This was the purport of the Commission's resolution. In our opinion, had plaintiff intended to proceed under the aegis of section 14 1/2 it should have, in the exercise of good faith, recommended that the Commission adopt a resolution indicating that the disputed portion was being taken as excess property and that it proposed to sell any portion thereof not needed for freeway purposes after completion of the freeway. We should here note that section 14 1/2 provides that 'The Legislature may, by statute, prescribe procedure.' It appears to us that in enacting section 104.1 of the Streets and Highways Code, providing for taking of the whole of a parcel when only a part is needed for highway purposes, the Legislature was purporting to act within the purview of section 14 1/2. We are not here passing upon the validity of section 104.1 because we are not called upon to to do so. As we have hereinabove discussed, plaintiff concedes that in the instant action it is not proceeding under section 104.1.
'The State, or any of its cities or counties, may acquire by gift, purchase or condemnation, lands for establishing, laying out, widening, enlarging, extending, and maintaining memorial grounds, streets, squares, parkways and reservations in and about and along and leading to any or all of the same, providing land so acquired shall be limited to parcels lying wholly or in part within a distance not to exceed one hundred fifty feet from the closest boundary of such public works or improvements; provided, that when parcels which lie only partially within said limit of one hundred fifty feet only such portions may be acquired which do not exceed two hundred feet from said closest boundary, and after the establishment, laying out, and completion of such improvements, may convey any such real estate thus acquired and not necessary for such improvements, with reservations concerning the future use and occupation of such real estate so as to protect such public works and improvements and their environs and to preserve the view, appearance, light, air and usefulness of such public works. The Legislature may, by statute, prescribe procedure.'
We entertain serious doubt, moreover, that section 14 1/2 is applicable to state highways. The taking here was not for a memorial ground, square or parkway. Was it, then, a taking for 'streets'? The taking, as declared by the resolution of the Commission, was for a 'State highway, declared a freeway by California Highway Commission resolution * * *.' While the term highway has been said to be synonymous with 'street' (Fischer v. County of Shasta, 46 Cal.2d 771, 775, 299 P.2d 222); and while all 'streets' are highways, not all highways are streets. (Montgomery v. Santa Ana Westminster Railway Company, 104 Cal. 186, 188, 37 P. 786, 25 L.R.A. 654.) Strictly speaking, the word 'street' relates to a public thoroughfare or highway in a city, town, village or municipality. (See definition of 'Street' in Webster's Third New Internat. Dict.; see also legislative treatment of the several types of public ways in the Streets and Highways Code, and the discussion pertinent thereto in the dissenting opinion of Justice Carter in Fischer v. County of Shasta, supra; and see also San Francisco-Oakland Terminal Rys. v. County of Alameda, 66 Cal.App. 77, 81, 225 P. 304.) It should also be noted that Code of Civil Procedure, section 1238, defining public uses subject to eminent domain makes reference separately to the several types of public ways, i. e., 'roads, highways, boulevards, streets and alleys; * * *.' (Subd. 3.) We doubt, furthermore that the Commission in adopting the subject resolution had in its contemplation that it was seeking to condemn property for 'street purposes,' particularly in view of the terminology therein used, its power to condemn only for 'State highway purposes' (Sts. and Hy. The Issue of Compensation
Section 23.5 defines 'freeway' as follows: "Freeway' means a highway in respect to which the owners of abutting lands have no right or easement of access to or from their abutting lands or in respect to which such owners have only limited or restricted right or easement of access.'
On the previous appeal in People v. Lagiss the court reversed the judgment, based upon a jury verdict, condemning the whole of defendant's property for $10,000. The order for reversal was without qualification, although the basis for the reversal was error in striking defendant's affirmative allegations of bad faith and abuse of discretion. As we have hereinabove indicated, the trial court concluded in the present proceeding, after making the finding that only a portion of the parcel was subject to condemnation and in view of plaintiff's waiver after such finding, that the amount of $10,000 fixed by the jury at the first trial as the value of the entire parcel constituted to total damages sustained by defendant because the value of the portion taken for highway purposes and the maximum severance damages to the area not taken cannot exceed the value of the whole of said parcel.
The defendant did not assert any error on appeal as to the issue of compensation.
It is the general rule that an unqualified reversal remands the case for a new trial and sets at large for readjudication all issues involved in the case. (De Hart v. Allen, 26 Cal.2d 829, 833, 161 P.2d 453; Monson v. Fischer, 219 Cal. 290, 291, 26 P.2d 6; Weightman v. Hadley, 138 Cal.App.2d 831, 835, 292 P.2d 909; Hall v. Superior Court, 45 Cal.2d 377, 381, 289 P.2d 431; DeMirjian v. Ideal Heating Corp., 129 Cal.App.2d 758, 764, 278 P.2d 114.) The effect of such a reversal is to restore the parties to the same position as if the action had never been tried. (Hall, supra, 45 Cal.2d p. 381, 289 P.2d pp. 433-434; Weightman, supra, 138 Cal.App.2d p. 836, 292 P.2d p. 913; Steen v. Los Angeles, 31 Cal.2d 542, 547, 190 P.2d 937.) Accordingly the original judgment ceases to exist for any purpose and it cannot be modified (Cowdery v. London, etc., Bank, 139 Cal. 298, 303, 307, 73 P. 196); nor are the findings at the first trial of any effect (DeMirjian v. Ideal Heating Corp., 150 Cal.App.2d 540, 545, 310 P.2d 488); nor can the trial court make findings based on evidence taken at the first trial. (Hall, supra, 45 Cal.2d p. 381, 289 P.2d pp. 433-434; Heinfelt v. Arth, 4 Cal.App.2d 381, 384, 41 P.2d 191.) Plaintiff concedes that these general principles are declarative of the general rule, but asserts that a different rule ought to be here invoked in view of the unique nature of an eminent domain proceeding and in the interests of justice.
It should be first noted that in an eminent domain proceeding the sole question for the jury is that of compensation. Every other question is for the court. The jury's verdict is adopted by the court in its findings of fact and conclusions of law (People v. Ricciardi, 23 Cal.2d 390, 402, 144 P.2d 799); and judgment is then entered on the court's findings and conclusions, and not on the verdict. (City of Los Angeles v. Cole, 28 Cal.2d 509, 512, 170 P.2d 928; People v. Broome, 120 Cal.App. 267, 270, 7 P.2d 757.) It is clear, therefore, that the jury's determination as to compensation becomes a finding made by the judge. It is equally clear, then, that an unqualified reversal annuls the findings of the trial court including such findings as to compensation which the jury may have determined.
We apprehend no rule which requires us to consider a condemnation case in a different light than other cases. The important question is not whether the case is one in condemnation, but whether it was the intent in People v. Lagiss to reverse the judgment without qualification, or whether the order of reversal therein may be interpreted to mean that it was directed to a limited, severable portion of the case. (People ex rel. Dept. of Public Works v. Mascotti, 206 A.C.A. 866, 872, 23 Cal.Rptr. 846.) Severability exists only when the portion which has been selected for appeal can be reversed without affecting other portions of the judgment. (American Enterprises, Inc. v. In the prior appeal in this case defendant appealed from the entire judgment. While the appeal was directed solely to the issue of public use and necessity this issue was necessarily interwoven with the question of compensation. It was defendant's contention on appeal that he should have been permitted to show that only a portion of the parcel was needed for a public purpose. The trial court had determined that the entire parcel was needed for a public use. Accordingly the jury in the first trial was called upon to determine only the value of the entire parcel. It is clear that if defendant was entitled to prevail on his affirmative defense upon the retrial, the jury would be called upon to determine only the value of the portion condemned. The jury would also be called upon to determine the amount of severance damages, if any, sustained by the portion not condemned. (Code Civ.Proc. § 1248, subd. 2.) The issue of compensation for land taken is separate and distinct from severance damages. The former is compensation for a taking; the latter compensation for a damaging. (People ex rel. Dept. of Public Works v. Logan, 198 Cal.App.2d 581, 591, 17 Cal.Rptr. 674; see also People ex rel. Dept. of Public Works v. Symons, 54 Cal.2d 855, 860, 9 Cal.Rptr. 363, 357 P.2d 451.) Code of Civil Procedure section 1248, subdivision 7, requires severance damages to be assessed separately. Moreover, section 1248 requires that where the property sought to be condemned is part of a larger parcel there must be determination of how much the remaining portion will be benefited, if at all, by the construction of the improvement proposed by the condemnor, and this benefit, if any, must also be assessed separately. (Subd. 3.) This latter subdivision has been interpreted to apply to special benefits, which directly enhance the value of the property after condemnation, rather than general benefits which accrue to the entire neighborhood or City of Hayward v. Unger,
Plaintiff relies essentially upon Whalen v. Smith, 163 Cal. 360, 125 P. 904; Lake v. Superior Court, 187 Cal. 116, 200 P. 1041; People v. Ayer, 33 Cal.App.2d 78, 90 P.2d 819 and Burgermeister Brewing Corp. v. Superior Court, 195 Cal.App.2d 368, 15 Cal.Rptr. 751. A perusal of these cases readily discloses that the issue involved on appeal was severable. In Whalen and Lake the appeal was a partial one from the determination of certain issues and not from others. It was held in each case, by the reviewing court, that the broad expression 'judgment is reversed' will be confined to the issues arising upon appeal. In Ayer, a condemnation case, the issue on appeal was the single issue of ownership. The order of reversal there specifically stated prior to the expression 'The judgment is reversed,' that 'the cause should be returned for further inquiry upon this issue.' (I. e., the issue of ownership.) Ayer, therefore, provided specifically for a limited reversal. (See People ex rel. Dept. of Public Works v. Logan, 198 Cal.App.2d 581, 17 Cal.Rptr. 674, which cites the Ayer case as authority for the proposition that it is proper to order a retrial on a single issue in a condemnation case so as to avoid the effect of an unqualified reversal.) In Burgermeister Brewing Corp. the cross-complainant sued on counts in contract and in fraud. He prevailed on the contract counts but not on the fraud counts. The cross-defendant appealed from the 'whole judgment' and the judgment was reversed. Prohibition thereafter issued restraining the trial court from retrying the fraud counts. The rationale of the reviewing court was that although the cross-defendant appealed from the 'whole judgment' it was only appealing from the judgment on the contract counts and not that portion of the judgment in its favor on the fraud counts. The court's holding was based on the severability of the contract counts from the fraud counts and upon the fact that the cross-complainant himself had not appealed from that part of the judgment denying him relief on the fraud counts.
We must assume, unless otherwise indicated, that this court, in People v. Lagiss, intended to set the case 'at large' in view of its unqualified reversal, because the reversal of the whole judgment was essential to protect the interests of defendant-appellant. Upon the decision of an appellate court that there was material error in the action of the court below the reviewing court may correct the character of the subsequent proceedings in the lower court and its mandate will vary according to its views as to the proper course to be pursued. (Cowdery v. London, etc., Bank, supra, 139 Cal. 298, 303, 73 P. 196.) As said in Cowdery: 'It [the appellate court] may conclude not to reverse the judgment, but to modify it by eliminating some portion, or by adding something to it, leaving the remaining part of the judgment below to stand affirmed and in full force and effect from the date of its original entry or rendition; or it may reverse the judgment, which means to entirely vacate it, and may remand We conclude that the findings of fact and conclusions of law, made by the judge sitting without a jury, on the issue of public use are proper, but are not proper with respect to the issue of necessity. However, a new trial is not necessary on the issues of public use and necessity if the findings are amended to conform to the views expressed herein as to the conclusiveness of the resolution of the commission as to public necessity. The judgment must, however, be reversed because the issue of compensation has not been determined.
The judgment is reversed with directions that the issue of compensation be tried by a jury, unless a jury be waived, and that trial court's findings of fact and conclusions of law be amended with respect to the issue of necessity in accordance with the views herein expressed. Defendant will recover his costs on appeal.
BRAY, P.J., and SULLIVAN, J., concur.
The rule announced by Chevalier has been followed in County of San Mateo v. Bartole, 184 Cal.App.2d 422, 7 Cal.Rptr. 569, and County of Los Angeles v. Bartlett, 203 Cal.App.2d 523, 21 Cal.Rptr. 776.
'Q * * * And the intention is to treat this remainder as excess property when the litigation is settled or determined, as indicated in Defendant's Exhibit 8 in evidence.
* * *
'A The intent was here that he should take no action until after this litigation was settled. After that time, we'd have the decision to make as to whether to turn it over to the county or sell it perhaps to the cemetery people with restrictions against placing improvements on it.'
Section 24 defines 'state highway' as follows: 'As used in this code, 'state highway' means any highway which is acquired, laid out, constructed, improved or maintained as a state highway pursuant to constitutional or legislative authorization.'