Opinion
For Opinion on Rehearing, see 34 Cal.Rptr. 155.
Anson, Gleaves & Larson and Milnor E. Gleaves, Los Angeles, for appellants.
Harold W. Kennedy, County Counsel, Lloyd S. Davis, Deputy County Counsel, for respondent County of Los Angeles.
E. D. Yeomans, James W. O'Brien, Los Angeles, for respondent Southern Pacific Company.
FOX, Presiding Justice.
Plaintiffs, husband and wife, appeal from a judgment of dismissal entered against them after they elected to stand on the sufficiency of their amended complaint in inverse condemnation following the sustaining of demurrers of defendants County of Los Angeles (hereinafter referred to as 'the County') and Southern Pacific Company (hereinafter referred to as 'the Railroad').
Plaintiffs allege permanent diminution in the value of property owned by them, due to loss of access therefrom, as a result of the closure of a public road at its intersection with a right-of-way of the Railroad. The geographical situation, as alleged in the amended complaint, may be summarized as follows:
The property owned by plaintiffs is located in the community of Vincent, a small
After setting forth the physical situation involving their property, plaintiffs allege that in 1957 the County, by a resolution of its Board of Supervisors, declared its intention to construct a grade separation at the insersection of Angeles Forest Highway and the Railroad's tracks; that in August 1959 a written agreement was made between the County and the Railroad which provided for the construction of such a grade separation, as a joint County and Railroad improvement project, but at some distance from the location of the existing grade crossing; and that a new section of Angeles Forest Highway was to be built and extended to this new location for the grade separation. Plaintiffs further allege that the agreement provided for the physical closure of the old section of Angeles Forest Highway on both sides of the tracks, subject to the approval of the state Public Utilities Commission (hereinafter referred to as 'the Commission'). The agreement, according to plaintiffs' amended complaint, provided that the cost of the project was to be shared by the two defendants; that the Railroad was physically to remove the existing highway crossing; that the County was to quitclaim its road easement, at the old crossing point, to the Railroad; and that the County was to be responsible for the settlement of all property damages arising out of the project.
Counsel have informed this court in oral argument that the plans have been carried out; i. e., the new section of Angeles Forest Highway has been constructed, and it joins with Sierra Highway at a point not contiguous with plaintiffs' property and at some distance from that property.
Plaintiffs further allege that the County made application to the Commission for Plaintiffs claim damages as a result of the closing, alleging that all physical access from plaintiffs' property along Angeles Forest Highway in an easterly and southerly direction has been permanently taken and destroyed; that the property has been placed in a cul-de-sac; and that access in an easterly and southerly direction to the general system of streets, roads and highways intersecting with Angeles Forest Highway beyond the Railroad's tracks has been lost.
Plaintiffs allege finally the filing of a claim with the County and its denial prior to suit, and failure of both defendants to bring an action in eminent domain.
'The right of access to one's property has been called a property right in itself, in the nature of an easement, meritorious of protection from undue encroachment. People v. Ricciardi, 23 Cal.2d 390, 397, 144 P.2d 799. In People ex rel. Dept. of Public Works v. Russell, 48 Cal.2d 189, 195, 309 P.2d 10, 14, it was said that 'the right of access [of a property owner] has been defined as extending to a use of the road 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. Rose v. State, supra, 19 Cal.2d 713, 728, 123 P.2d 505. It is more extensive than a mere opportunity to go into the street immediately in front of one's property.'' (Rosenthal v. City of Los Angeles, 193 Cal.App.2d 29, 31, 13 Cal.Rptr. 824, 826.)
On the other hand, '[i]t has long been recognized that there is no right to recover for all elements of damage caused by the construction of a public improvement. In Eachus v. Los Angeles, etc. Ry. Co., 103 Cal. 614, at page 167, 37 P. 750, at page 751, the court stated: '* * * The damage for which compensation is to be made is a damage to the property itself, and does not include a mere infringement of the owner's personal pleasure or enjoyment. Merely rendering private property less desirable for certain purposes, or even causing personal annoyance or discomfort in its use, will not constitute the damage contemplated by the constitution; * * *.'' (People ex rel. Department of Public Works v. Symons, 54 Cal.2d 855, 858-859, 9 Cal.Rptr. 363, 365, 357 P.2d 451, 453.) The 'cases recognize that diversion of traffic or mere circuity of travel, even where they result in impairment of value, are not compensable.' (People v. Sayig, 101 Cal.App.2d 890, 902, 226 P.2d 702, 710.)
Finally, the Supreme Court resolved the problem of compensation for impairment of access to one's property by promulgating the 'next intersecting street' rule which is to the effect that a property owner suffers compensable damages when, as a result of a public improvement, his property, which was formerly located on a street running in both directions in front of his property, became located in a cul-de-sac, i. e., ingress and egress to the next intersecting street in one direction was cut off. (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.)
Plaintiffs in the instant case base their asserted right to recover damages for closing the crossing in question on the principle of these cases. But the situation of their property does not bring them within the cul-de-sac principle. It will be recalled City of San Mateo v. Railroad Commission,
In their reply brief they state: 'Appellants seek and have pleaded only that element of depreciation of market value caused by the creation of the cul-de-sac and the complete loss of access in one direction that has resulted therefrom.'
Counsel for plaintiffs concede that any damage caused by the diversion of traffic that once passed their property on its way to other communities in the south is not compensable. This principle also applies where the diversion of traffic is caused by a relocation of the highway. (Holloway v. Purcell, 35 Cal.2d 220, 217 P.2d 665.) The fact, perchance, that plaintiffs may have to travel a somewhat greater distance in order to reach points south is not a compensable item of damage. (People v. Sayig, supra.)
Apropos here is the situation that was reviewed in People ex rel. Department of Public Works v. Symons, supra. That case involved a proceeding in eminent domain. A freeway had been constructed adjoining defendants' property. The street on which their house abutted was then terminated at the freeway boundary. It appears from the opinion that evidence was excluded as to damages for loss of access, from the east, where the freeway was located, and for other items. On appeal it was held that the evidence was properly excluded since the items for which damages were sought, including loss of access, were not compensable. In Rosenthal, supra, 193 Cal.App.2d p. 33, 13 Cal.Rptr. p. 827 we pointed out that 'in Symons there was even a loss of access to the next intersecting street.'
Plaintiffs make the argument that in cul-de-sac situations the only question is the extent of the compensable damages and that this is a question of fact. As previously pointed out the closing of the crossing does not put plaintiffs' property in a cul-de-sac since it is contiguous to Sierra Highway and there is no allegation that Angeles Forest Highway is the sole means of access to their property. Further, this argument is set at rest in Sayig, supra [hear. den.], where the court held (101 Cal.App.2d p. 902, 226 P.2d p. 710): 'It is for the trial judge, not the jury, to determine whether the property owner's right of access is substantially impaired. If such an impairment is found, then the extent of the impairment is for the jury.'
It is thus apparent that plaintiffs have failed to state a cause of action in their amended complaint and the court properly sustained defendants' demurrers.
Additionally, relative to the Railroad's position, it should be pointed out that the right to use the crossing in question was a public right and not a private right (City of San Mateo v. Railroad Commission, supra, 9 Cal.2d p. 12, 68 P.2d p. 719), and that plaintiffs acquired and enjoyed this right along with the rest of the public, and that they acquired no greater or different right to use this crossing than the public generally. Plaintiffs acquired no property The Public Utilities Code, § 1202, provides in part:
'The commission has the exclusive power:
'(a) To determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, use, and portection of each crossing of one railroad by another railroad or street railroad, and of a street railroad by a railroad, and of each crossing of a public or publicly used road or highway by a railroad or street railroad, and of a street by a railroad or vice versa, subject to the provisions of Sections 1121 to 1127, inclusive, of the Streets and Highways Code so far as applicable.
'(b) To alter, relocate, or abolish by physical closing any such crossing heretofore or hereafter established.'
In applying this section, it is pertinent to note the considerations that the Commission takes into account in reaching its decision. These are stated in Decision No. 56141 (1958), 56 PUC 153, at 155: 'In exercising its authority to determine whether a grade crossing should be eliminated by physical closing, the Commission considers among other factors the actual damage to private individuals. Considering the showing made by this protestant, the Commission finds that protestant has failed to make any showing which would justify an order to continue this little-used and dangerous street as a means of traversing the Southern Pacific Company tracks. The contention of Perry Feed Company that the proceeding, so far as it involves the closing of Cedar Street, is a step in eminent domain to acquire or damage private property rights for a public use, is without merit for the reasons that (1) the Commission is herein exercising the police power of the State, and (2) the closing of this grade crossing involves the termination of a public use and in no respect is there a taking for any use or a construction of a public improvement which in any respect involves the exercise of the State's power of eminent domain.'
It is clear that in ordering the instant grade crossing closed and a grade separation provided at another point the Commission was acting in the interest of public safety under the police power, and that in the case at bench the action of the Public Utilities Commission did not transgress upon any of plaintiffs' property rights and that they are not entitled to any compensation for closing said grade crossing pursuant to the Commission's order.
The judgment is affirmed.
ASHBURN and HERNDON, JJ., concur.