GEORGE BACICH, Appellant, v. BOARD OF CONTROL OF THE STATE OF CALIFORNIA et al., Respondents, 23 Cal. 2d 343

CARTER, J. The demurrers of defendants Board of Control, California Toll-Bridge Authority and State Department of Public Works to plaintifE’s complaint for damages in this action in inverse condemnation were sustained without leave to amend.

PlaintifE alleges that he is the owner of an improved lot situated on the west side of Sterling Street between the intersection of that street with Bryant Street and Harrison Street in the City and County of San Francisco, the two latter streets being parallel; that before the construction of the improvement hereinafter mentioned Harrison Street was level with Sterling Street and he had access from his lot to Harrison Street by footpaths and street railway; that a street railway extending along Sterling Street served his property; that the area around his property was formerly used for residential purposes; that the construction of the approaches to the San Francisco Bay Bridge by defendants resulted in the lowering of Harrison Street fifty feet, leaving as the only access thereto an almost perpendicular flight of steps, the destruction of the residence property in the area, the removal of the street railway, and the erection of an elevated highway between his lot and Bryant Street which he must pass under to reach the latter street; that by reason of the foregoing his property has been damaged in the sum of $14,-000; and that he filed a claim for those damages with defendant Board of Control which was rejected.

The demurrer of defendant State Board of Control was properly sustained inasmuch as it had nothing to do with the construction of the improvement or the alleged damaging of plaintiff’s property. It is not charged that the Board of Control, a state agency, had anything to do with the construction of the improvement, it being interested only as the recipient of the claim for damages filed by plaintiff. The failure to name the State of California as a party defendant does not require an affirmance of the judgment.

The complaint contains all the elements necessary to state a ease against the State and has named the state agencies in their capacity as such which had charge of the construction of the improvement. The action is in effect one against the State. Plaintiff’s request for leave to substitute the State as party defendant in place of the defendants Board of Control, California Toll-Bridge Authority, and Department of Public Works should have been granted. (California Securities Co. v.

State, 111 Cal.App. 258 [295 P. 583].) Under those circumstances it is not necessary to consider whether the Toll-Bridge Authority under its statutory powers had authority to do anything with reference to the construction of the improvement which plaintiff alleges caused the damages. The instant action is predicated upon the constitutional provision that private property may not be taken or damaged for a public purpose without the payment of just compensation. (Cal. Const., art.

I, sec. 14.) That clause of the Constitution is self-executing and hence neither consent to sue the State nor the creation of a remedy by legislative enactment is necessary to obtain relief thereunder (Rose v. State of California, 19 Cal.2d 713 [123 P.2d 505]). Sections 667 and 688 of the Political Code relating to claims against the State do not constitute an obstacle to recovery on the liability here involved.

Section 688 by its terms applies only to claims based on “express contract or for negligence.” The claim here involved is one based upon the liability incurred when the State exercises its power of eminent domain without pursuing the customary procedure therefor. In such a case the cause of action is in inverse condemnation and is not founded either upon express contract or negligence. (Rose v. State of California, supra.)

Section 667 states in part that: “Any person having a claim against the state, the settlement of which is not otherwise provided for by law, must present the same to the board at least four months before the meeting of the legislature, accompanied by a statement showing the facts constituting the claim, verified in the same manner as complaints in civil actions. Before finally passing upon any such claim, notice of the time and place of hearing must be mailed to the claimiant at least fifteen days prior to the date set for final action.

At the time designated the board must proceed to examine and adjust such claims. It may hear evidence in support of or against them and, with the sanction of the governor, report to the legislature such facts amd recommendations concerning them as may be proper.” (Emphasis added.) From the italicized portions of that

section it is indicated that its purpose was to establish an orderly procedure by which the Legislature would be advised of claims against the State in instances where no provision had been made for their payment. The Legislature would then be in a position to determine, in the light of the investigation and recommendation of the Board of Control whether or not it should make an appropriation to pay the claim. That purpose is also evidenced from other sections appearing in the same

article of the Political Code. For illustration,

section 664 embraces the presentation of claims to the state controller where an appropriation has been made.

Section 665 authorizes the controller to draw a warrant for a claim he has approved, and if disapproved to file it together with his report with the Board of Control.

Section 666 involves claims where no appropriation has been made or no fund is available for their payment, the settlement of which is provided by law, or where the fund has been exhausted. Such claims if approved by the Board of Control shall be transmitted to the Legislature.

Section 667 deals with the situation where no mode of settlement of the claim has been provided by the law. Essentially, those sections deal with the means and methods of payment of claims, the conditions under which funds in the state treasury may be allocated to pay claims, and the obtaining of an appropriation from the Legislature when no funds are available. They are concerned with the mechanics of the financial operations of the State with relation to the payment of claims.

In order to obtain payment of a claim from funds available therefor, or if not available from an appropriation by the Legislature, the requirements of those sections must be met. The requirement that claims be presented at least four months before the meeting of the Legislature is to give the Board of Control an opportunity to investigate them, thus enabling the ensuing Legislature to give them more intelligent consideration.

The clear intent of the statute is that if a claim is to be given consideration at the next session of the Legislature it should be presented four months prior thereto and an investigation made.

Section 667 makes no provision for a flat rejection or approval of the claim by the board. It merely states that the board shall, with the sanction of the governor, report to the Legislature such facts and recommendations as may be proper. (See Sullivan v. Gage, 145 Cal. 759, 765 [79 P. 537], considering similar requirements in the Political Code as then written.) No provision is made for the next steps available to the claimant if the recommendation is unfavorable. The

section does not specify what session of the Legislature the four months’ period must precede; that is, whether it is the session next following the accrual of the claim or some subsequent session. If the claim accrued during the four months’ period immediately preceding a session of the Legislature, certainly compliance could not be had with the

section if the next ensuing session of the Legislature were meant. If the claim accrued four months and two days before the next session of the Legislature, the claimant would have only two days in which to present his claim. That would be clearly unreasonable when we consider that his right is created and protected by the Constitution. Also as bearing upon the intent of the Legislature it should be noted that, in 1941, the Legislature added

section 688.1 to the Political Code (Stats. 1941, eh. 982, p. 2618), where it for the first time expressly provided that claims must be filed with the board in cases of inverse condemnation and adopted

section 688 for the requirements in relation thereto. The act adding that

section expressly declared it inapplicable to pending actions. At the time of its adoption the instant action was pending. All of the foregoing factors manifest the intent that in the case of a claim in inverse condemnation predicated on the Constitution (Cal. Const., art. I, see. 14)

section 667 does not require the filing of a claim with the Board of Control as a condition precedent to an action thereon, nor as a limitation upon the time within which an action must be commenced. Hence, the sufficiency and timeliness of the claim filed by plaintiff in the instant action is immaterial. The major issue presented in this ease is whether or not plaintiff may recover compensation under the constitutional provision (Cal. Const., art. I, sec. 14) in the light of the facts stated by him.

He is entitled thereto under the wording of that provision if his property has been taken or damaged for a public use. The solution of that question depends largely upon the character and extent of his property right. If he has a property right and it has been impaired or damaged, he m'ay recover. The test frequently mentioned by the authorities, that he may recover if he has suffered a damage peculiar to himself and different in kind, as differentiated from degree, from that suffered by the public generally, is of no assistance in the solution of the problem.

If he has a property right and it has been impaired, the damage is necessarily peculiar to himself and is different in kind from that suffered by him as a member of the public or by the public generally, for his particular property right as a property owner and not as a member of the public has been damaged. (See Rose v. State of California, supra.) In the instant case we are concerned with a property right known as the right of access which an owner has in the street upon which his property abuts and which is appurtenant to such abutting property.

The function of the court is to determine and define the character and extent of that right. The right of access, being by its terms general in nature, requires definition and clarification as to its extent and character. This is especially true where we are concerned with the constitutional provision which requires that compensation be paid where property is taken or damaged. The property right of access generally is firmly established.

It has long been recognized in this state and elsewhere that an owner of property abutting upon a public street has a property right in the nature of an easement in the street which is appurtenant to his abutting property and which is his private right, as distinguished from his right as a member of the public. That right has been described as an easement of ingress and egress to and from his property or, generally, the right of access over the street to and from his property, and compensation must be given for an impairment thereof. We are not now inclined to question or disturb that rule. (See Rose v.

State of California, supra; Eachus v. Los Angeles etc. Ry. Co., 103 Cal. 614 [37 P. 750, 42 Am. St. Rep. 149]; McCandless v. City of Los Angeles, 214 Cal. 67 [4 P.2d 139]; Lane v. San Diego Elec. Ry. Co., 208 Cal. 29 [280 P. 109]; Wilcox v. Engebretsen, 160 Cal. 288 [116 P. 750]; Williams v. Los Angeles Ry. Co., 150 Cal. 592 [89 P. 330]; Brown v. Board of Supervisors, 124 Cal. 274 [57 P. 82]; Geurkink v. City of Petaluma, 112 Cal. 306 [44 P. 570]; Bigelow v.

Ballerino, 111 Cal. 559 [44 P. 307]; 10 Cal.Jur. 333-335; 18 Am.Jur., Eminent Domain, sees. 181-185; 49 A.L.R. 330; 93 A.L.R. 639.) The precise origin of that property right is somewhat obscure but it may be said generally to have arisen by court decisions declaring that such right existed and recognizing it. (See 18 Am.Jur., Eminent Domain, sec. 181; 41 YaleL.J. 221.) For that reason, in the determination of the extent and character of that right most of the cases rely, without discussion, upon precedents which ñt or are analogous to the circumstances present in the case before the court.

If the question is one of first impression its answer depends chiefly upon matters of policy, a factor the nature of which, although at times discussed by the courts, is usually left undisclosed.

It may be suggested that on the one hand the policy underlying the eminent domain provision in the Constitution is to distribute throughout the community the loss inflicted upon the individual by the making of public improvements. (See 41 YaleL.J. 221-224; 52 Harv.L.Rev. 1176-1177; 3 Harv.L.Rev. 189-205.) Manifestly, the addition to the eminent domain clause in constitutions in most states, including California, of “or damaged” to the word “taken” indicates an intent to extend that policy to embrace additional situations.

On the other hand, fears have been expressed that compensation allowed too liberally will seriously impede, if not stop, beneficial public improvements because of the greatly increased cost. (See Davis v. County Commissioners, 153 Mass. 218 [26 N.E. 848, 850, 11 L.R.A. 750]; 13 Va.L.Rev. 334-337.) However, it is said that in spite of that so-called policy “the courts cannot ignore sound and settled principles of law safeguarding the rights and property of individuals.

This [improvement] may be of great convenience to the public generally, but the properties of abutting owners ought not be sacrificed in order to secure it”; and, quoting from Sedgwick on Constitutional Law: ‘ ‘ The tendency under our system is too often to sacrifice the individual to the community; and it seems very difficult in reason to show why the State should not pay for property which it destroys or impairs the value, as well as for what it physically takes. ...” (Liddick v.

City of Council Bluffs, -Iowa-[5 N.W.2d 361, 372, 382].) In some degree those opposed policies are manifested in the conflict between the constitutional mandate that compensation be paid when private property is taken or damaged for a public purpose and the exercise of police power where compensation need not be paid. The line between those two concepts is far from clearly marked.

It will be recalled that in the instant case it is alleged that by reason of the lowering of Harrison Street fifty feet below the level of Sterling Street the access that plaintiff formerly had to Harrison Street from Sterling Street has now been lost except for an almost perpendicular flight of stairs. The condition resulted from the construction of a public improvement, namely, approaches to a bridge spanning San Francisco Bay. It does not appear that any compelling emergency or public necessity required its construction without the payment of compensation for property damaged.

Therefore, the State may not escape the payment of compensation under the police power. The ultimate effect of lowering Harrison Street was to place plaintiff’s property in a cul-de-sac. Whereas, before he had access to Harrison Street, the next intersecting street from his property on Sterling Street, he now has access in one direction only, that is, to Bryant Street, the next intersecting street in the opposite direction. The existence of access in one direction to the general system of streets has been impaired to the extent that there is now left only the stairway.

Plaintiff alleged that formerly Sterling Street was level with Harrison Street, which may be interpreted to mean that general access was available. He does state that formerly he had access by a streetcar line and footpaths. That being true his access by those modes has been lost except to the extent that the stairway is a substitute for pedestrian access. In that respect his property has been placed in a cul-de-sac.

Moreover, his request for leave to amend may be construed to embrace a showing that formerly there was access to Harrison Street for vehicular traffic, or at least that there was a right of way or public street, improved or unimproved, joining Sterling Street with Harrison Street. Furthermore, it is apparently conceded by defendants that a cul-de-sac has been created. That plaintiff’s property has been damaged by the impairment cannot .be here questioned. The allegation in his complaint that it has been must be taken as true.

Whether or not such impairment is compensable must depend upon the character and extent of his easement of access. Does it extend to a right to pass to the next intersecting streets? Nothing more need be decided in this ease; we are not concerned with the correct rule in a case where the obstruction occurs beyond the next intersecting street nor with what the rule may be for rural property.

Practically all authorities hold, and we believe correctly, that no recovery may be had where the obstruction is beyond the next intersecting street. (See eases cited: 4 McQuillin, Municipal Corporations [2d ed.], 279-280, sec. 1527; 1 Lewis on Eminent Domain [3d ed.], 350, 383, secs. 191, 203; 25 Am.Jur., Highways, sec. 318; 49 A.L.R. 330; 93 A.L.R. 639.) The extent of the easement of access may be said to be that which is reasonably required giving consideration to all the purposes to which the property is adapted.

It is obvious that in the instant case the damage suffered is greater and different than if the obstruction had been beyond the next intersecting street. Where formerly plaintiff had an outlet from his property at both ends of Sterling Street, he now has access at only one end, which definitely affects ingress to and egress from his property. It would seem clear that the reasonable modes of egress and ingress would embrace access to the next intersecting street in both directions.

It should be noted that the right is more extensive than the mere opportunity to go on to the street immediately in front of the property. (Rose v. State of California, supra.) We are not confronted with the necessity of balancing the conflicting policies heretofore referred to without the aid of persuasive precedent. Many authorities and writers have either declared or intimated that the creation of a cul-de-sac, that is, the blocking of access to the next intersecting street in one direction is compensable, although the access still exists in the opposite direction to an intersecting street.

In other words, the easement is of that extent. (See Felton v. State Highway Board, 47 Ga.App. 615 [171 S.E. 198]; City of Chicago v. Baker, 39 C.C.A. 318 [98 F. 830]; City of Chicago v. Burcky, 158 Ill. 103 [42 N.E. 178, 49 Am.St.Rep. 142, 29 L.RA. 568]; Davis v. City of Chicago, 290 Ill.App. 244 [8 N.E.2d 378]; Falender v. Atkins, 186 Ind. 455 [114 N.E. 965]; O’Brien v. Central Iron & Steel Co., 158 Ind. 218 [63 N.E. 302, 57 L.RA. 508]; Magdefrau v. Washington County, 228 Iowa 853 [293 N.W. 574]; Liddick v. City of Council Bluffs, supra; Highbarger v. Milford, 71 Kan. 331 [80 P. 633]; Burton v.

Freund, 243 Mich. 679 [220 N.W. 672]; Dean v. Ann Arbor R. R., 137 Mich. 459 [100 N.W. 773]; Vanderburgh v. City of Minneapolis, 98 Minn. 329 [108 N.W. 480, 6 L.RA.N.S. 741]; Locascio v. Northern Pac. Ry. Co., 185 Minn. 281 [240 N.W. 661]; In re Hull, 163 Minn. 439 [204 N.W. 534, 205 N.W. 613, 49 A.L.R. 320]; Lowell v. Buffalo County, 123 Neb. 194 [230 N.W. 842, 242 N.W. 452]; Mandell v.

Board of Com’rs of Bernalillo County, 44 N.M. 109 [99 P.2d 108]; In re Grade Crossing Com’rs, 210 App.Div. 328 [206 N.Y.S. 103], aff’d 240 N.Y. 612 [148 N.E. 727]; In re William & North William Streets, 103 Misc. 313 [171 N.Y.S. 116], aff’d 188 App.Div. 668 [177 N.Y.S. 318]; Hiatt v. City of Greensboro, 201 N.C. 515 [160 S.E. 748]; Coy v. City of Tulsa, 2 F.Supp. 411; Atchison T. & S. F. Ry. Co. v. Terminal Oil Mill Co., 180 Okla. 496 [71 P.2d 617]; Sandstrom v. Oregon-Washington R. & Nav. Co., 69 Ore. 194 [146 P. 803, 49 L.RA.N.S. 889]; Cooke v.

City of Portland, 136 Ore. 233 [298 P. 900]; In re Vacation of Part of Melon Street, 182 Pa. 397 [38 A. 482, 38 L.R.A. 275]; Spang & Co. v. Commonwealth, 281 Pa. 414 . [126 A. 781]; Hindes v. Allegheny County, 123 Pa.Sup.Ct. 469 [187 A. 219]; Johnsen v. Old Colony R. Co., 18 R.I. 642 [29 A. 594]; Illinois Cent. R. Co. v. Moriarity, 135 Tenn. 446 [186 S.W. 1053]; City of Texarkana v.

Lawson, (Tex.Civ.App.) 168 S.W. 867; McQuillin, Municipal Corporations, [2d ed.] vol. 4, 276-278; secs. 1526-1527; Lewis on Eminent Domain, [3d ed.] vol. 1, 350-351, sec. 191; 16 Harv.L.Rev. 372; 39 YaleL.J. 128.) There are cases to the contrary (see 49 A.L.R. 330, 93 A.L.R. 639), but some of them are based upon a constitutional provision which allows compensation for taking alone, no mention being made of a damaging. Many of them advance no sound reason for not permitting recovery, and arrive at the result with unenlightening phrases which furnish no real test.

We do not fear that permitting recovery in cases of cul-de-sacs created in a municipality will seriously impede the construction of improvements, assuming the fear of such an event is real rather than fancied. The damage to the property owner is immediate and direct. The value of the use of the property is directly affected. To be able to get onto the street immediately in front of the property is of little value if that is as far as he can go. If he has access to the next intersecting street in both directions and one way is cut off, his easement, if it has any value to him at all, has certainly been impaired.

We conclude, therefore, that the right of access extends in both directions to the next intersecting street. Defendants contend that there are cases in California contrary to the foregoing views. In Wolff v. City of Los Angeles, 49 Cal.App. 400 [193 P. 862], the portion of the street which was graded was a considerable distance from plaintiffs’ property and beyond an intersecting street, as was pointed out by this court in denying a hearing. In City of San Mateo v. Railroad Commission, 9 Cal.2d 1 [68 P.2d 713], it does not appear that the closing of the street placed the property owners on a cul-de-sac.

Streets crossing the railroad right of way were closed, but it is said that as far as appears from the record the property abutted upon either a county road or state highway which paralleled the sides of the railroad. Moreover, it is pointed out that the property owners were not parties to a proceeding before the Railroad Commission and that the commission had “not attempted to adjudicate such rights.” The case was referred to and distinguished in Rose v. State of California, supra, at page 731.

While that case may hold that grade crossings may be eliminated pursuant to the police power, we do not interpret it as holding that property may be placed in a cul-de-sac by the construction of a public improvement without the payment of compensation. Reference is made to Bigley v. Nunan, 53 Cal. 403, and Brown v. Board of Supervisors, 124 Cal. 274 [57 P. 82]. Neither of those cases involved a cul-de-sac. Both of them were concerned with a narrowing of the width of a street. (See Hargro v.

Hodgdon, 89 Cal. 623 [26 P. 1106].) The Bigley case is based upon the theory that the right of access is not peculiar and private to an abutting owner, which is out of harmony with Rose v. State of California, supra, at pages 727-728, and the authorities there cited. In the Brown case the only question before the court was whether the board of supervisors had the power to narrow the width of the street by virtue of its authority to close or vacate streets. The question of whether an action for damages under the Constitution would lie was not involved.

The discussion apparently to the contrary of the views herein expressed was unnecessary. Indeed, the court, near the close of its opinion, quoted with approval from Symons v. San Francisco, 115 Cal. 555 [42 P. 913, 47 P. 453], where it was said: “Whether the order will have the effect to diminish the value of the plaintiffs’ land, or to cause them damage, is not a ground for annulling the act of the board of supervisors, and cannot be considered in this proceeding.

If the board of supervisors had the authority to pass the order, and the plaintiffs have sustained any legal damage by reason thereof, they must seek relief in a direct proceeding therefor.” (Emphasis added.) Defendants contend that the creation of the cul-de-sac causes nothing more than mere circuity of travel which is not compensable, citing Wolff v. City of Los Angeles, supra. The inapplicability of that case has heretofore been discussed. In any event, the phrase “circuity of travel” has varied meanings and is frequently misused by the courts.

There is more than merely a diversion of traffic when a cul-de-sac is created. The ability to travel to and from the property to the general system of streets in one direction is lost. One might imagine many circumstances, as has been shown by defendants, in which recovery should not be permitted or where the reasons for recovery in the cul-de-sac cases might not be logically applied, but we are here concerned with the particular facts of this ease and do not purport to declare the law for all cases under all circumstances. The other items of damages claimed by plaintiff are not compensable.

He asserts that all the residences, except his own, in a described area in which his property is situated were eliminated by defendants, and that a street railway formerly operating on Sterling Street has been removed. There is no property right appurtenant to plaintiff’s property on Sterling Street which entitles him to the maintenance of the residences or the continuous operation of the existing street railway. The removal of the residences and leaving the property vacant did not constitute a nuisance.

It does not appear that the elevated road between plaintiff’s property and Bryant Street in any way interferes with his access to the latter street or impairs any easement, if one exists, to light, air or view. The judgment is reversed, and the court below is directed to permit the plaintiff to amend his complaint if he be so advised in conformity with the views herein expressed. Gibson, C. J., Shenk, J., and Sehauer, J., concurred.