Opinion
Page __
__ Cal.App.2d __ 260 P.2d 658 PEOPLE, BY AND THROUGH DEPARTMENT OF PUBLIC WORKS v. THOMPSON et al. Civ. 4584. California Court of Appeals, Fourth District Sept. 10, 1953Rehearing Denied Sept. 29, 1953.
Hearing Granted Nov. 5, 1953.
[260 P.2d 659] Robert E. Reed, Sacramento, George C. Hadley, Herbert J. Williams and Albert J. Day, Los Angeles, for appellant.
Holbrook, Tarr & O'Neil and Leslie R. Tarr, Los Angeles, for respondent.
MUSSELL, Justice.
Appellant commenced this proceeding in eminent domain for the purpose of converting a portion of highway 101 north of Leucadia in San Diego county into a freeway.
Respondents own property on the east and west of the existing state highway, which bisects their property in a northerly and southerly direction. The westerly land of defendants is beach property, over which an easement for highway purposes 600 to 700 feet in width extends from the westerly edge of highway 101 to the Pacific Ocean for the purpose of providing for the drainage of San Marcos Creek under said highway. This easement physically divided the beach property into a northerly section of .99 acres and southerly section of 7.24 acres. The northerly 35 acres of respondents' property east of the highway, referred to as the landward property, was being dry farmed and the remaining south 35 acres was slough or sump land into which the San Marcos Creek drained. The beach property was not devoted to any existing use as of the date of the valuation in this proceeding.
The property sought to be condemned consists of approximately 12.73 acres (parcel 2-A) lying along the east side of the existing highway 101 and the extinguishment of all abutters' rights of access appurtenant to respondents' landward property, except that the northerly 361.33 feet thereof was to abut upon and have access to a newly created frontage road. In addition, this parcel included within its description the underlying fee to all existing state highway easements. All of the property sought to be taken except the underlying fee to the beach easement consisted of respondents' landward property and no abutters' rights of access were taken from the beach property.
As a part of the construction of the freeway a new two lane road was to be constructed easterly of the existing highway. This new construction would carry north bound traffic and the existing highway would then carry south bound traffic only, and the area between the two traveled ways [260 P.2d 660] was, in effect, a dividing strip. A cross-over was to be provided near the southern boundary of respondents' property and an underpass was to be constructed near their north property line. A barbed wire fence, to prevent access to the freeway, was to be erected along the easterly boundary of the freeway right of way from the southerly boundary of respondents' property to a point 361.33 feet south of respondents' northerly boundary. The northerly 361.33 feet of respondents' property was to abut upon and have access to the newly created frontage road constructed by appellant, which, through a system of interchanges, gave respondents' property access to the freeway in both a northerly and southerly direction.
Throughout the jury trial, appellant contended that the beach property was not a part of the larger parcel, of which parcel 2-A was a part, since it had been severed for many years by state highway 101 and the same owner had theretofore received compensation for the severance of this property.
The trial court ruled that the beach property was a part of the larger parcel for the purpose of determining the value of parcel 2-A and constituted a part of the remainder for the purpose of assessing severance damages. Following this ruling, opinions were given by respondents' witnesses enhancing the value of the part taken based on the court's ruling that it was connected to and was a part of the beach property, although no beach property except the underlying fee to the beach easement was actually taken. These witnesses also attributed severance damages to the beach property upon the same basis.
The jury returned a verdict finding that the value of parcel 2-A is the sum of $12,000 and that the damage to defendants' remaining property not sought to be condemned by reason of the taking of parcel 2-A and the construction of the freeway in the manner proposed is $17,500.
The trial court found that for the purpose of determining the value of parcel 2-A, sought to be condemned by plaintiff, all of said defendants' property on both sides of the existing state highway was and now is one contiguous and entire tract of real property under the single ownership of the defendants, subject to an easement for highway purposes, and further found that after the taking of parcel 2-A by the plaintiff and the construction of the freeway improvement in the manner proposed, the defendants' remaining property (upon which severance and consequential damages were assessed and determined) was and is all of the defendants' property abutting the westerly side of the existing highway and all of the defendants' property abutting the easterly side of the proposed freeway improvement.
Judgment was entered pursuant to the verdict of the jury and this appeal was taken for the primary purpose of determining that the property separated from the part taken by an existing traveled state highway is not a part of a larger parcel for the purposes of valuation and severance damages.
Appellant first contends that the beach property, separated from the parcel taken by an existing state highway was erroneously held to be a part of the larger parcel for the purpose of determining the value of parcel 2-A and severance damages. We agree with this contention.
In a proceeding in eminent domain the court or jury must ascertain and assess damages to the property owner for the value of the property taken and if such parcel is a part of a larger parcel, for any severance damages sustained by the remaining land. Section 1248, Code Civ.Proc. The remaining property must be physically contiguous to the parcel condemned. East Bay Mun. Utility Dist. v. Kieffer, 99 Cal.App. 240, 260, 278 P. 476, 279 P. 178; Atchison, T. & S. F. Railway Co. v. Southern Pac. Co., 13 Cal.App.2d 505, 57 P.2d 575. In City of Stockton v. Ellingwood, 96 Cal.App. 708, 745, 275 P. 228, 244, it is held that 'There must be contiguity; that is, the governmental subdivisions must in fact constitute one parcel, and not divided by either natural or artificial objects or ways so as to divide the land into two or more separate parcels.' This principal of law is conceded by respondents but they argue that the appellant obtained only a [260 P.2d 661] right of way and easement for highway purposes for existing highway 101; that the underlying fee thereof is owned by respondents and that, therefore, the beach and landward property are contiguous. However, an examination of the grant deed to the State of the real property upon which the existing highway was constructed leads us to the conclusion that the underlying fee was conveyed to the State thereby. The deed, dated November 19, 1924, executed by the then owners of the property, provides in the first paragraph (the granting clause) that the owners 'do hereby grant to the State of California the real property * * * described as follows.' The second paragraph contains a description of the property and the third paragraph provides 'It is hereby agreed that as a further consideration for the granting of said right of way * * *' the State shall vacate and abandon certain portions of the old right of way. The deed also provides that it is understood that the grantors 'grant only that portion of land which is included within land owned by said grantors or in which said grantors are interested and hereby waive any and all claim for damages or compensation for or on account of the establishment of said state highway.'
Respondents contend that the use of the words 'said right of way', in referring to the further consideration expressed in the deed, shows that the grantors did not intend to part with fee title to the property. However, the term 'right of way' may reasonably be interpreted as describing not only the easement but also the land occupied by its use, Moakley v. Los Angeles Pac. Ry. Co., 139 Cal.App. 421-424, 34 P.2d 218, and the term is susceptible of a twofold interpretation. Anderson v. Willson, 48 Cal.App. 289, 295, 191 P. 1016. Moreover, a deed is to be interpreted as a whole for the purpose of ascertaining the true intention of the parties. Section 1066, Civ.Code; Smallpage v. Turlock Irrigation Dist., 26 Cal.App.2d 538, 543, 79 P.2d 752; Parks v. Gates, 186 Cal. 151, 199 P. 40; Barnett v. Barnett, 104 Cal. 298, 300, 37 P. 1049. If possible, effect should be given to each and every part of the deed, Burnett v. Piercy, 149 Cal. 178, 86 P. 603, and it must be construed most strongly against the grantor. Section 1069, Civ.Code; Section 1864, Code Civ.Proc.; Ball v. Mann, 88 Cal.App.2d 695, 199 P.2d 706. The deed, considered as a whole, contemplates the granting of the fee and the quoted phrase was used for the purpose of describing the property rather than to divide or limit the estate or interest granted. No limitation is found in the granting clause and the benefits run to 'said grantee, its successors and assigns'. This is consistent with the granting of the fee and under the circumstances shown, the deed operated to convey fee title to the property involved. Las Posas Water Co. v. County of Ventura, 97 Cal.App. 296, 299, 275 P. 817.
Another factor to be considered in determining whether the beach property and the landward property of respondents constitute one or two parcels is the use to which the land was put. While unity of use is not the controlling factor, City of Oakland v. Pacific Coast Lumber Etc. Co., 171 Cal. 392, 398, 153 P. 705, it should be considered in determining whether the properties are contiguous, and as was said in People v. Ocean Shore Railroad, 32 Cal.2d 406-423, 196 P.2d 570, 581:
'There may be a right to an award of severance damages in some cases where the property, though not physically contiguous, is being devoted to an existing unity of use. See Southern Calif. Edison Co. v. Railroad Comm., 6 Cal.2d 737, 59 P.2d 808; Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463. But such damages are ordinarily limited to contiguous property, and the mere fact that there is a possible or prospective use of separate properties as a unit, or that they are susceptible to a common use, will not justify the allowance of severance damages. See East Bay Mun. Utility Dist. v. Kieffer, 99 Cal.App. 240, 248, 278 P. 476, 279 P. 178; 2 Lewis on Eminent Domain, 3d Ed., (1909), § 697, p. 1207; 2 Nichols on Eminent Domain, 2d Ed., (1917), § 241, p. 740.' [260 P.2d 662] In the instant case the landward property was used for farming purposes and the beach property was not devoted to any existing use as of the date of the valuation thereof. The mere fact that the two properties are susceptible to a common use will not justify the allowance of severance damages.
Aside from the question as to the ownership of the underlying fee of the property involved, it is our conclusion that the existing highway divided respondents' property so as to preclude them from recovering severance damages to the beach property.
In County of San Mateo v. Christen, 22 Cal.App.2d 375, 71 P.2d 88, an action in eminent domain, appellant Darbee was the owner of 23 acres of land within the corporate limits of the town of Lawndale. A portion of said land lying on either side of a public street called Robson Avenue was delineated on a subdivision map filed for record in 1872 but never actually opened or improved upon the ground. This tract contained 4.357 acres, for which the jury awarded $4,021.30. It also found that the remaining land of the appellant was neither damaged nor benefited by the severance. The case was tried after the highway was completed and was in use. The lower court limited proof of damage to the lands lying on the same side of Robson Avenue as the land taken for the highway and it was claimed that since Robson Avenue was not improved or open on the ground to travel and since the appellant was using the entire tract as a unit that this was error under City of Stockton v. Marengo, 137 Cal.App. 760, 31 P.2d 467. The appellate court held (hearing denied by Supreme Court) that the trial court's ruling was proper; that the two cases were not parallel; that in the Marengo case the defendant had platted the tract into blocks and streets but had not sold it and continued to occupy it as a whole; that in the case before it, the tract was platted in 1872, and in 1910 and 1913 appellant had purchased the lots forming her holding by reference to the recorded map; that under the circumstances the case was ruled by East Bay Municipal Utility Dist. v. Kieffer, 99 Cal.App. 240, 278 P. 476, 279 P. 178, and City of Oakland v. Pacific Coast Lumber & Mill Co., 171 Cal. 392, 153 P. 705, and that the evidence of damage was properly limited to the contiguous lands not separated from the portion condemned by a public street.
In the instant case division of respondents' property took place when the deed of November 19, 1924, was executed and delivered to the appellant and the highway was actually improved upon the ground and in use by the public. No structures or objects of any kind or nature may be placed in, under or over the highway without securing a permit from the department of public works. People v. Henderson, 85 Cal.App.2d 653, 194 P.2d 91; Sections 660-670 Sts. & Hy. Code. The State acquired a permanent, exclusive surface easement as well as the fee title to the property. In this connection respondents argue that under the provisions of Section 2631 of the Political Code (in effect when the 1924 deed was executed) the State could acquire only a right of way by taking and accepting land for a highway. However, this argument was answered contrary to respondents' contention in Las Posas Water Co. v. County of Ventura, supra, 97 Cal.App. at page 300, 275 P. 817.
Further evidence of a division and separation of respondents' property is found in said deed of 1924 wherein respondents waived all claim for damage or compensation for and on account of the establishment of highway 101, and in their deed of January 24, 1935, which contains a similar waiver. Under these circumstances, they cannot here again recover damages to the beach property for the establishment and construction of the highway. Collopy v. United Railroads, 67 Cal.App. 716, 228 P. 59.
It is true, as argued by respondents, that their right to cross and recross the highway is limited by the establishment of the freeway. However, respondents, if owners of the underlying fee, would have no greater rights to encroach upon the highway right of way than strangers to the title, People v. Henderson, supra, [260 P.2d 663] 85 Cal.App.2d at page 656, 194 P.2d 91, and the construction of a dividing strip in the center of the highway is in exercise of the police power and not compensable. People v. Sayig, 101 Cal.App.2d 890, 901, 226 P.2d 702; Holman v. State of California, 97 Cal.App.2d 237, 217 P.2d 448. Moreover, no abutters' rights of access were taken in the present proceedings as to the beach property and respondents' access to the highway from that property was not impaired.
We conclude that the trial court erred in ruling that the beach property was a part of the larger parcel for the purpose of determining the value of parcel 2-A and constituted a part of the remainder for the purpose of assessing severance damages; that it was prejudicial error to permit respondents' witnesses herein to enhance severance damages by considering the beach property as a part of the remainder and to refuse an instruction that the beach property could not be considered in arriving at the amount of severance damages. Since these errors require a reversal of the judgment, it is not necessary to pass upon other points raised on this appeal.
Judgment reversed.
BARNARD, P. J., and GRIFFIN, J., concur.