Hearing Granted Nov. 1, 1960.
Opinion vacated 13 Cal.Rptr. 196.
George M. Naus, and Harold B. Lerner, San Francisco, for appellant.
Holloway Jones, Jack M. Howard, Roger Anderson, Robert S. Webber, San Francisco, Robert E. Reed, Sacramento, for respondent.
Before us are an appeal by defendant Neider from the judgment in this action in eminent domain, and a motion by respondent to dismiss the appeal. We conclude that the motion must be granted.
The motion is based on the long established rule that ordinarily a party cannot accept the full benefits of a judgment in the court below and at the same time maintain an appeal from that judgment. Schubert v. Reich, 36 Cal.2d 298, 299, 223 P.2d 242; San Bernardino County v. Riverside County, 135 Cal. 618, 620, 67 P. 1047. The rule is applicable to eminent domain actions in which the appealing defendant has accepted the full amount of the award. People ex rel. Department of Public Works v. Loop, 161 Cal.App.2d 466, 326 P.2d 902; cf. Donegan v. City of Los Angeles, 109 Cal.App. 673, 685, 293 P. 912; People v. Goodsell, 24 Cal.App.2d 538, 75 P.2d 545.
The facts that give rise to the motion to dismiss are as follows: Two separate actions were filed below. The first was filed March 10, 1955, the second April 22, 1957. They were consolidated and tried together insofar as they affect the appealing defendant. Separate verdicts were rendered in each, but one set of findings of fact and conclusions of law was signed by the judge, and one judgment was entered. The parties refer to the first action as the freeway case, and to the second as the drainage case, and we follow their practice. The appeal is solely in the drainage case.
The same two parcels of land in Marin County are involved in the two actions. Together they form a triangular parcel bounding Highway 101 on the east, a little to the north of the Richardson Bay crossing. The frontage is about 2,000 feet, and the depth, at the apex of the triangle, is about 620 feet. The portion of the highway along appellant's land had been formed by filling in marsh land, the highway surface being raised several feet above the level of the marsh, with culverts through the highway for drainage, the water flowing to the west. Appellant's land was also marshy, and was filled by him. The fill was carried to what appellant supposed was the highway property line, and a depression was left between the highway embankment and the filled part of appellant's land, thus forming a ditch through which drainage water flowed into The state decided to widen the highway to a six lane limited access freeway. In the freeway case, it sought to take from appellant parcels 20-First and 20-Second in fee, and drainage easements over parcels 20-Fifth and 20-Sixth, and obtained possession under an order issued at the inception of the case. It filled the old ditch, widenced the highway, erected the usual chain link fence, built, east of the fence, an 'access' or 'frontage' road, and beyond the road dug a new ditch, parallel to the former location of the old ditch, and about 47 feet further east (center line to center line). The new ditch is on parcels 20-Fifth and 20-Sixth. As to those parcels, the judgment in the freeway case, which is now final, is based upon findings that the drainage easement is temporary, to expire June 30, 1957, and that damages are limited to such a taking, appellant having the right thereafter to use the parcels as he pleased. The court particularly concluded that after June 30, 1957, appellant would have the right, as owner, to fill the new ditch.
The state then apparently decided that it needed to keep the new ditch open permanently to protect the highway, and filed the drainage case on April 22, 1957, in advance of the date when appellant could fill the new ditch or otherwise use the property in which it lay. In the drainage case complaint, parcels 20-Fifth and 20-Sixth (so called in the freeway case) are called parcels First and Second, and the state sought condemnation of a permanent easement over them for drainage. A new trial having been granted in the freeway case as to parcels 20-First and 20-Second, the cases were consolidated. The judgment awards the following:A. In the freeway case: -------------------------20-First $30,660.0020-Second 43,942.00 B. In the drainage case: -------------------------First33,259.00Second 31,570.00
The judgment in the freeway case is final; the appeal is solely in the drainage case.
The state paid into court the full amount ($139,431) of the foregoing awards, plus interest. Appellant drew down that full amount, and executed a receipt, in which he stated that he abandoned all defenses in the drainage case except as to the amount of damages to which he may be entitled in the event of a new trial.
In so doing, appellant purported to be acting under Code of Civil Procedure, § 1254. It seems clear that, unless Code of Civil Procedure, § 1254, is applicable, appellant, having drawn down the full amount of the award in the case in which he has appealed, has lost his right to appeal, under the cases cited above. The pertinent portions of section 1254 are set out in the margin. No order for immediate possession It seems clear to us that the procedure of appellant does not bring him within the provisions of the section, one purpose of which was to preserve the right to appeal under the circumstances and for the limited purpose set forth in the section. Cf. Young v. City Council, 74 Cal.App. 487, 493, 241 P. 415. It sets up an exception to the general rule that would otherwise apply under the decisions in People ex rel. Department of Public Works v. Loop, supra, 161 Cal.App.2d 466, 326 P.2d 902, and Donegan v. City of Los Angeles, supra, 109 Cal.App. 673, 293 P. 912. 'It would seem that the framers of both the constitution and the statute [Code Civ.Proc., § 1254] had in view the delays incident to condemnation proceedings, and the necessity in many cases of allowing property to be taken and used for a public use during the progress of the litigation, provided an adequate fund to fully reimburse the landowner was first paid into court.' Spring Valley Water Works v. Drinkhouse, 95 Cal. 220, 223, 30 P. 218, 219, and see Heilbron v. Superior Court, 151 Cal. 271, 90 P. 706. The statute is a scheme to accomplish this necessary result.
'At any time after trial and judgment entered or pending an appeal from the judgment to the Supreme Court, whenever the plaintiff shall have paid into court, for the defendant, the full amount of the judgment, and such further sum as may be required by the court as a fund to pay any further damages and costs that may be recovered in said proceeding, as well as all damages that may be sustained by the defendant, if, for any cause, the property shall not be finally taken for public use, the superior court in which the proceeding was tried may, upon notice of not less than 10 days, authorize the plaintiff, if already in possession, to continue therein, and if not, then to take possession of and use the property during the pendency of and until the final conclusion of the litigation, and may, if necessary, stay all actions and proceedings against the plaintiff on account thereof * * *. The defendant, who is entitled to the money paid into court for him upon any judgment, shall be entitled to demand and receive the same at any time thereafter upon obtaining an order therefor from the court. It shall be the duty of the court, or a judge thereof, upon application being made by such defendant, to order and direct that the money so paid into court for him be delivered to him upon his filing a satisfaction of the judgment, or upon his filing a receipt therefor, and an abandonment of all defenses to the action or proceeding, except as to the amount of damages that he may be entitled to in the event that a new trial shall be granted. A payment to a defendant, as aforesaid, shall be held to be an abandonment by such defendant of all defenses interposed by him, excepting his claim for greater compensation. In ascertaining the amount to be paid into court, the court shall take care that the same be sufficient and adequate. The payment of the money into court, as hereinbefore provided for, shall not discharge the plaintiff from liability to keep the said fund full and without diminution; but such money shall be and remain, as to all accidents, defalcations, or other contingencies (as between the parties to the proceedings), at the risk of the plaintiff, and shall so remain until the amount of the compensation or damages is finally settled by judicial determination, and until the court awards the money, or such part thereof as shall be determined upon, to the defendant, and until he is authorized or required by rule of court to take it.'
The statute does not require the state to proceed under it; it permits the state to do so (cf. Housing Authority, etc. v. Superior Court, 18 Cal.2d 336, 115 P.2d 468; Mt. Shasta Power Corp. v. Dennis, 66 Cal.App. 186, 190-191, 225 P. 877), and it attaches certain consequences if the state does so proceed. One is that the state must pay in such additional amount as the court may fix, to cover possible damages to the owner arising from his loss of possession during the litigation. Compare Davis v. San Lorenzo R. R. Co., 47 Cal. 517, with the decision in the Spring Valley case, supra. A second is that the state is finally committed to the full amount of the award, even though a lower value may be fixed, on the second trial, if the landowner exercises his option to draw down the money and surrender his right to contest any further except as to the amount of the award. Los Angeles, etc. Ry. Co. v. Rumpp, 104 Cal. 20, 24-27, 37 P. 859; Mt. Shasta Power Corp. v. Dennis, supra, 66 Cal.App. 186, 192, 225 No doubt it is because the scheme of the statute is thus correlative that the court in People ex rel. Department of Public Works v. Loop, supra, 161 Cal.App.2d 466, at page 472, 326 P.2d 902, at page 906, refers to the provisions under which the money may be paid to the defendant as 'an integral part' of the whole section, and holds that, where the plaintiff and not make the motion contemplated by the first sentence of the section, its payment into court of the award plus interest 'was not made under or pursuant to section 1254, and that section has no application.' 161 Cal.App.2d at page 473, 326 P.2d at page 906. The court also said (161 Cal.App.2d at page 474, 326 P.2d at page 907) that the part of the section authorizing the defendant to draw down the money 'may not be read out of context' and that '[i]t is only after such determination [of the amount to be paid into court, pursuant to motion of the plaintiff] that the defendant is entitled to receive the money paid into court for him under section 1254.'
In this case, the payment of the money into court by the state was simply a compliance with Code of Civil Procedure, §§ 1251 and 1252.
But, says appellant, the state took possession under a court order in the freeway case, and, as the court found in the drainage case, has remained in possession ever since. To this there appear to us to be two clear answers. The first is that the state's right to possession terminated, under the final judgment in the freeway case, on June 30, 1957. The order of possession in the freeway case was then functus officio. Thereafter appellant owned the full fee and was entitled to the possession, and the state took no steps, either under Code of Civil Procedure, § 1254, or under any other provision of law, to deprive him of his possession or right to possession. The second is that the parties are agreed that the sole basis for the court's 'finding' in the drainage case that the state has had possession ever since June 30, 1957, is that the new ditch remained upon the land, undisturbed. The judgment in the freeway case gave appellant full compensation for the use of the land through June 30, 1957, including whatever damages he may have suffered by getting the land back with the new ditch on it. It is not claimed that the state did or threatened to do anything since that date to prevent appellant from exercising, in whatever manner and to whatever extent he might choose, his full rights as owner of the property. Had the state done anything of that sort, appellant would have had his remedy by an ordinary action. Cf. San Diego Land etc. Co. v. Neale, 78 Cal. 80, 20 P. 380; Grigsby v. Burtnett, 31 Cal. 406. The fact that he did nothing is not equivalent to a retention of possession by the state. The 'finding' is nothing but an erroneous conclusion of law.
The Legislature having prescribed the conditions upon which appellant would be permitted to have his cake and eat it too, and those conditions not existing in this case, appellant, having elected to eat the cake, no longer 'has' it.
BRAY, P. J., and TOBRINER, J., concur.