THE PEOPLE, Appellant, v. ANTONINO RICCIARDI et al., Respondents, 23 Cal. 2d 390

SHENK, J. In this action in eminent domain the plaintiff appeals from a judgment on a verdict fixing the compensation to be paid to the defendants for the land taken and for damages to the remainder by reason of the severance and 'the construction of the improvement in the manner proposed. The purpose of the condemnation proceeding is to acquire land sufficient to effectuate, by means of an underpass, the separation of the grade of Rosemead Boulevard at its intersection with Ramona Boulevard in Los Angeles County.

The double tracks of the Pacific Electric Railway Company traverse Ramona Boulevard on the route from Los Angeles to San Bernardino and cross Rosemead Boulevard at the intersection. The defendants are the owners of property located at the northeast corner of Rosemead and Ramona Boulevards, both of which are state highways. The property of the defendants is improved with a modern slaughter house and retail meat market, both set back from the highways so as to afford parking facilities. A residence with a large storage basement faces Rosemead Boulevard.

Ingress and egress is afforded the entire property along both boulevards, with driveways leading into the property from the two highways. At present Rosemead Boulevard fronting on defendants’ property is 60 feet wide. By the proposed improvement it is intended to make this boulevard 280 feet wide. It will consist of four lanes, two in the underpass, and two outer lanes on each side thereof, designated as service roads, the latter being 30 feet wide.

Rosemead Boulevard will commence to pass under Ramona Boulevard at a point southerly thereof and will come to grade northerly thereof at Glendon Way, the latter of which is the first cross or intersecting street north of defendants’ property, approximately 525 feet north of Ramona Boulevard. The underpass will reach a maximum depth of seventeen feet.

Visibility of traffic in that portion of the underpass directly in front of the defendants’ remaining property on Rosemead Boulevard will be entirely cut off.- Between the underpass and the remaining property a lane designated as a service road thirty feet in width is provided for at grade. A ten-foot sidewalk strip between the service road and the defendants’ property is also provided for. A dividing strip 50 feet wide at Glendon Way narrowing to 25 feet at the covered portion of the underpass is between the service road and the easterly wall of the underpass.

This strip is left for support and landscaping purposes. The highway plans show that the portion of Ramona Boulevard to the north of the railway right of way is to have a 35 foot freeway for westbound fast traffic and an outer lane 30 feet wide, also called a service road, for local traffic. To the south of the railway right of way a similar freeway for eastbound fast traffic is provided for. The service road on Rosemead Boulevard and the service road on Ramona Boulevard will connect at the southeast corner of the defendants’ property and at that point there is access to the westbound traffic on Ramona Boulevard.

The service road on Rosemead extends to Glendon Way, which is the next intersecting street to the north. There is a conflict in the evidence as to whether the service road paralleling Ramona Boulevard extends to the next intersecting street to the east. The service roads are at the .grade of defendants’ property.

When the underpass is constructed upon the westerly portion of the property taken from the defendants the grade of Rose-mead Boulevard will be changed so as to effectively block all ingress and egress to and from the main highway except by traversing the service road to Glendon Way and then making a left turn into the boulevard. A verdict was rendered awarding the defendants $9,000 for the taking of parcel 1, and damages to the remainder by reason of the severance and the construction of the improvement in the manner proposed in the sum of $15,000.

For the taking of parcel 2, the sum of $350 was allowed with no severance damages. The main attack on the judgment is the award for severance damages. During the course of the trial witnesses were produced to prove market values.

On the examination of the defendants’ witnesses the plaintiff took the position and now asserts that considerations of interference with the defendants’ right of access to the main highway resulting from the construction of the improvement and the consequent enforced circuity of travel to and from the property to the main highway as proposed may not properly be taken into account in fixing severance damages; also, that the defendants’ claimed loss of visibility to and from the main highway as proposed could not be taken into consideration as affecting market value.

At the instance of the plaintiff the trial court at first excluded all evidence relating to those subjects, but finally was persuaded by the defendants’ counter position that under the facts presented such interference with access and loss of visibility should be taken into consideration in determining market value. Accordingly, the court admitted evidence bearing on those issues and submitted the question of the extent of the severance damages caused thereby to the jury. One of the principal contentions of the plaintiff on the appeal is the asserted error of the trial court in admitting that evidence.

Not every depreciation in the value of the property not taken can be made the basis of an award of damages. In the absence of a declaration by other competent authority the courts have been called upon to define rights claimed to be infringed in violation of

section 14,

article I, of the Constitution ; also to place limitations on the extent of those rights and to declare when and under what circumstances recovery may he had by the property owner for a violation thereof. The courts have assumed the burden and responsibility of defining those rights and of limiting their extent because of the necessity of safeguarding the constitutional rights of private parties on the one hand and on the other hand of seeing to it that the cost of public improvements involving the taking and damaging of private property for public use be not unduly enhanced.

The law on the subject of the nature and extent of the rights of the property owner abutting on a public highway and of the infringement of those rights is therefore, in substantial part, case law. For example, it has been held in this state that injury to the business of the owner or occupant of the property does not form an element of the compensating damages to be awarded (Oakland v. Pacific Coast Lumber etc. Co., 171 Cal. 392 [153 P. 705]). This is so because it is only the value of, and the damage to, the property itself, which may be considered.

A particular business might be entirely destroyed and yet not diminish the actual value of the property for its highest and best use. (See 10 Cal.Jur. 341, sec. 55.) It has also been held in this state that an abutting owner has no right to compensation by reason of diversion of traffic away from his property (Rose v. State of California, 19 Cal.2d 713 [123 P.2d 505]; People v. Gianni, 130 Cal.App. 584 [20 P.2d 87]; City of Stockton v.

Marengo, 137 Cal.App. 760 [31 P.2d 467]). ' Neither in the Constitution nor in statutes do we find any declaration of the incidents of ownership or elements of value which specifically creates or defines or limits the two rights which are involved here. But we do find general provisions of law which are basic to our consideration.

Section 658 of the Civil Code declares that “Beal or immovable property consists of: 1. Land; 2. That which is affixed to land; 3. That which is incidental or appurtenant to land . . .”, and

section 662 of the same code defines appurtenances in general language as follows: “A thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit, as in the case of a way, or watercourse, or of a passage for light, air, or heat from or across the land of another.”

Section 1248 and related sections of the Code of Civil Procedure, which prescribe the procedure in condemnation actions, do not assume to create rights of ownership, or to define the incidents thereof or the elements of value.

It is, therefore, necessary for this court to determine whether the claimed items are, or shall be, included among the incidents or appurtenances of real property within the purview of the general definition of appurtenances above quoted, and are therefore to be considered as elements of value attaching to private property and for which compensation must be paid when the same is taken or damaged for a public use in eminent .domain proceedings.

The courts of this state, from time immemorial and in cases too numerous to mention, have declared and enforced the abutting property owner’s right to a free and convenient use of and access to the highway on which his property abuts. (Eachus v. Los Angeles etc. Ry. Co., 103 Cal. 614, 617 [37 P. 570, 42 Am.St.Rep. 149]; Geurkink v. City of Petaluma, 112 Cal. 306, 308 [44 P. 570]; O’Connor v. Southern Pacific R. R. Co., 122 Cal. 681 [55 P. 688]; Brown v. Board of Supervisors, 124 Cal. 274, 280 [57 P. 82]; Eachus v. City of Los Angeles, 130 Cal. 492 [62 P. 829, 80 Am.St.Rep. 147]; Smith v. Southern Pacific R. R.

Co., 146 Cal. 164 [79 P. 868, 106 Am.St.Rep. 17]; Williams v. Los Angeles Railway Co., 150 Cal. 592 [89 P. 330]; Wilcox v. Engebretsen, 160 Cal. 288, 299 [116 P. 750]; Lane v. San, Diego Elec. Ry. Co., 208 Cal. 29, 33 [280 P. 109]; McCandless v. City of Los Angeles, 214 Cal. 67, 71 [4 P.2d 139]; Rose v. State, supra, 19 Cal.2d 713, 727 [123 P.2d 505]; Lewis, Eminent Domain (3d ed.), p. 177; McQuillin, Municipal Corporations (2d ed.), vol. 4, pp. 79, 85; Nichols, Eminent Domain (2d ed.), p. 503.) It was declared in the case of Eachus v. Los Angeles etc. Ry.

Co., supra, 103 Cal. 614 [37 P. 570, 42 Am.St.Rep. 149], at p. 617, that-this right of ingress and egress attaches to the lot and is a right of property as fully as is the lot itself and any act by which that easement is destroyed or substantially impaired for the benefit of the public, is a damage to the lot itself, within the meaning of the constitutional provision under which the owner is entitled to compensation.

It is also the settled law that “An abutting owner has two kinds of rights in a highway, a public right which he enjoys in common with all other citizens, and certain private rights which arise from his ownership of property contiguous to the highway, and which are not common to the public generally; . . . An abutting landowner on a public highway has a special right of easement and user in the public road for access purposes, and this is a property right which cannot be damaged or taken away from him without due compensation. [Citing cases.] ” (Lane v. San Diego Elec. Ry.

Co., 208 Cal. 29, 33 [280 P. 109].) But as we view the record in this case we are not called upon to declare new rights of property in the abutting owner but to define the extent of existing rights, to ■ determine whether the trial court committed error in its rulings on the admission of evidence on the subjects of impairment of access and loss of visibility as affecting the market value of the defendants’ existing property rights and whether the findings and conclusions of the trial court on those subjects are supported by sufficient evidence.

The plaintiff does not take the position that the evidence is insufficient to support some award of severance damages based on other elements bearing on market value.

There is evidence of substantial severance damages on account of a reduction in size of the remaining land, of the severance of the remaining land into an irregular strip, of the curtailment of the remaining parking area, of the reduction of the commercially zoned portion of the property which corners upon the two highways, and of the impairment of the use of the property as a functioning unit caused by the taking of integral parts of the operating plant. No complaint is made of the consideration of those matters in fixing severance damages.

But it is insisted by the plaintiff that no actionable interference with the right of access results from so-called circuity of travel to which an abutting owner may be subjected as the result of the construction of a public improvement; that such an interference is but an inconvenience suffered only in common with the general public; that it has no proper relation to the abutting property owner’s easement of ingress and egress and that it cannot therefore be a right special and peculiar to his right of property.

Counsel for the plaintiff apparently concede that if the interference is actionable it is a proper matter to be considered in fixing compensation, for it is said in that behalf'that “under the California ‘or damages’ clause compensation is not allowed except for an actionable interference with a property right.” “ Actionable interference” with a property right can he no different from “substantial impairment” of the right as that phrase is so familiarly used in the cases.

The contention that the disputed elements of damage—the taking or impairment of the right of direct access to the through highways and the taking or impairment of the right of visibility to and from the one highway (Rosemead Boulevard) in relation to the remaining property—are noncompensable as being the result of police power regulation, cannot be sustained under the facts and law applicable here.

We recognize that the defendants have no property right in any particular flow of traffic over the highway adjacent to their property, but they do possess the right of direct access to the through traffic highway and an easement of reasonable view of their property from such highway.

If traffic normally flowing over that highway were re-routed or if another highway were constructed which resulted in a substantial amount of traffic being diverted from that through highway the value of their property might thereby be diminished, but in such event defendants would have no right to compensation by reason of such re-routing or diversion of traffic. The re-routing or diversion of traffic in such a case would be a mere police power regulation, or the incidental result of a lawful act, and not the taking or damaging of a property right.

But here we do not have a mere re-routing or diversion of traffic from the highway; we have, instead, a substantial change in the highway itself in relation to the defendants’ property; i. e., a re-routing of the highway in relation to defendants’ property rather than a mere re-routing of traffic in relation to the highway. Defendants’ private property rights in and to that highway are to be taken and damaged. It is only for such private property rights that compensation has been assessed.

The court allowed no damages to be predicated on any diversion of traffic from the highway but it did properly allow damages to be based on diversion of the highway from direct access to defendants’ property. Prior to the enactment in 1879 of

section 14 of

article I of the Constitution the problem of compensating for damages to the remainder where the whole parcel was not taken did not arise. Compensation for the land taken for public use was the only matter for consideration. In Reardon v. San Francisco, 66 Cal. 492 [6 P. 317, 56 Am.Rep. 109], it was held for the first time that the addition of the words “or damaged” embraced more than the “taking” provided for in the Constitution of 1849, and gave to the property owner a remedy which he did not previously have.

The addition of the “or damaged” phrase in the present constitutional provision has given rise to many difficult problems with reference to the extent of the rights of the owner of property damaged where none is taken and where part of a larger parcel is taken and the remainder is claimed to be damaged by reason of the severance and the construction of the improvement in the manner proposed. Where the whole is taken no question of severance damages is, of course, involved. When compensation is claimed either for a taking or a damaging the issues may be presented for adjudication in at least two forms of action.

In one there is an absence of a proceeding in eminent domain. In that form of action the property owner seeks relief by bringing an action for compensation for a taking or a damaging of his property or both, as the case may be. Illustrative of that class of cases with many others in our reports are McCandless v. City of Los Angeles, 214 Cal. 67 [4 P.2d 139], the more recent case of Rose v. State of California, 19 Cal.2d 713 [123 P.2d 505], and the current case of Bacich v. Board of Control, ante, p. 343 [144 P.2d 818].

The other form of action is, as here, a proceeding in eminent domain in which the procedure is laid down by

section 1248 and related sections of the Code of Civil Procedure. In both actions the result is the same in that in each the property owner receives compensation for the invasion of his private right; but the procedure in arriving at the result is different. In the one case the property owner assumes the burden of alleging and proving his property right and the infringement thereof, and the question whether his allegations in that behalf are sufficient may be determined on demurrer.

In the other case the condemning authority, in commencing the proceeding, affirmatively alleges ownership in the defendants, the contemplated taking and severance, and seeks a determination by the court of issues confided by the law to the decision of the court and also seeks a determination by the jury, unless one be waived, of the compensation which should be paid to the property owner. It is provided in

section 1248 of the Code of Civil Procedure that the jury “must hear such legal testimony as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess: 1. The value of the property sought to be condemned, and all improvements thereon pertaining to the realty, and of each and every separate estate or interest therein;... 2. If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned, by reason of its severance from the portion sought to be condemned, and the construction of the improvement in the manner proposed by the plaintiff.”

Section 1249 provides that for the purpose of assessing compensation and damages the “actual value” thereof at the date specified “shall be the measure of compensation for all property to be actually taken, and the basis of damages to property not actually taken but injuriously affected.” The law has adopted market value as establishing actual value. (Sacramento etc. R. R. Co. v.

Heilbron, 156 Cal. 408 [104 P.979].) The court said in that case at page 409 that as to the land actually taken “the rule is of universal acceptance that the measure of this damage is the market value; that is to say, the highest price estimated in terms of money which the land would bring if exposed for sale in the open market, with reasonable time allowed in which to find a purchaser, buying with knowledge of all of the uses and purposes to which it was adapted and for which it was capable.” As to the damages to the remainder by reason of the severance, an instruction in that case was approved which laid down the rule that such damages should be determined by ascertaining the market value of the portion not sought to be taken (as of the date fixed by statute, which in this case was November 23, 1938) and by deducting therefrom the market value thereof after the severance and the construction of the improvement in the manner proposed by the plaintiff.

This measure of damages is in accordance with the provisions of the code sections referred to. Such damages may be shown by proving the market value of the remainder before and after the taking and leaving the computation of the difference to the jury, or by competent evidence of severance damages in a lump sum as was done by the testimony of witnesses in this case.

Of course, as above indicated, in applying this rule damages may not be allowed for diminution of property value resulting from highway changes causing diversion of traffic, circuity of travel beyond an intersecting street, or other noncompensable items. (See Rose v. State of California, supra; Bacich v. Board of Control, supra.) When the proceeding comes on for hearing all issues except the sole issue relating to compensation, are to be tried by the court, and if the court does not make special findings on those issues its findings thereon are implicit in the verdict awarding compensation. (Vallejo etc. R. R.

Co. v. Reed Orchard Co., 169 Cal. 545, 556 [147 P. 238]; Oakland v. Pacific Coast Lumber etc. Co., supra, 171 Cal. 392 [153 P. 705] at page 397.) In the Vallejo case the court said at page 556: “A condemnation suit is a special proceeding. It is not included in the classes mentioned in

section 592 [Code of Civil Procedure] in which a jury is required. That

section is expressly made applicable to condemnation suits. (Code Civ. Proc. § 1256.) It follows that, except those relating to compensation, the issues of fact in a condemnation suit, are to be tried by the court, and that if the court submits them to a jury it is nevertheless required to make .findings either by adopting the verdict thereon i or by making findings in its own language.” In the Oakland case the point was urged that the question whether the parcels of land involved constituted one parcel within the meaning of

section 1248 of the Code of Civil Procedure must be submitted to the jury for determination. The court said at page 397: “But neither the state nor any of its mandatories, nor any other person or corporation, exercising the power of eminent domain, is compelled to submit to the determination of a jury every question of fact (Vallejo etc. R. R. Co. v.

Reed Orchard Co., 169 Cal. 545 [147 P. 238]), and this question of fact (namely, whether or not, the probative facts being without controversy, the resultant fact establishes the existence of a parcel from which a portion is to be taken) is essentially a question of law for the determination of the court. It is only the ‘compensation,’ the ‘award,’ which our constitution declares shall be found and fixed by a jury. All other questions of fact, or of mixed fact and law, are to be tried, as in many other jurisdictions they are tried, without reference to a jury. (Const., art.

I, § 14.) ” The law declared in these two cases has been followed in this state without deviation. It was therefore within the province of the trial court and not the jury to pass upon the question whether under the facts presented, the defendants’ right of access will be substantially impaired. If it will be so impaired tbe extent of the impairment is for the jury to determine. This is but another way of saying that the trial court and not the jury must decide whether in the particular case there will be an actionable interference with the defendants’ right of access.

This the trial court did when it ruled on the admission of evidence and in its instructions to the jury. In admitting the evidence objected to by the plaintiff the trial court was necessarily guided by the settled law with reference to an abutter’s rights and by the facts presented in the case. The record is voluminous and consists of a large relief map, numerous other maps and many volumes of transcribed testimony.

This evidence was before the court at the close of the defendants’ ease at which time the ruling was made permitting the expert witnesses to testify to the effect upon the market value of the property not token by reason of the contemplated improvement and the consequent requirement that the owner must thereafter take another route to reach the through traffic lane which before the improvement was immediately in front of his premises.

To sustain the plaintiff’s position would require a ruling by this court to the effect that although a landowner’s easement of access has been substantially impaired, under no circumstances should circuity of travel occasioned thereby enter into a computation of the damages to be awarded. Such a ruling obviously would be beyond the bounds of propriety. Certainly the plaintiff would not contend that if the underpass be constructed as proposed and no means of access to Bosemead Boulevard be provided for, the defendants would be without redress.

It is too plain to admit of argument that if the underpass be constructed as proposed and the service roads were not provided for in the contemplated improvement, the defendants’ right of access to Bosemead Boulevard would be practically destroyed. In providing for the service roads the state must be deemed to have proceeded in frank recognition of the private right of access possessed by the defendants, that such right would be invaded, and intended by means of those service roads to minimize and entirely absorb the damages to which the defendants would otherwise be entitled.

But in any event the question whether the defendants possessed a right which was damaged was for the trial court to determine. As to how much the service roads would mitigate the damage, i. e., how much would be the net damage, was a question of fact for the jury. (See Knox County v. Le Marr, 20 Tenn.App. 258 [97 S.W.2d 659, 661].) It is also the position of the state that evidence of loss of visibility has not been justified in this case as a part of access and that it can be justified on no other theory.

The weight of authority seems to be in favor of the proposition that an abutting owner of property on a public highway has an easement of reasonable view of his property from the highway (90 A.L.R. 793, 794, and cases cited; 29 C.J.S., p. 912, sec. 905). The right of reasonable view in addition to the right of ingress and egress is named as one of the easements possessed by the abutting owner in Williams v. Los Angeles Ry.

Co., 150 Cal. 592, 595 [89 P. 332], Here again it was for the trial court to determine whether the obstruction caused by the underpass would unreasonably cut off defendants’ property from visibility by travelers on the main highway, and, the right being substantially impaired, the amount of damage was a question for the jury. The findings and conclusion of the trial court implicit in the verdict are supported by the evidence and may not now properly be disturbed. No just criticism can be made of the severance damages awarded in the light of the record in this case.

The entire property was valued at as much as $68,000 and the severance damage was estimated as high as $41,779. In view of this evidence an award of $15,000 on the latter item cannot be set aside on appeal. The plaintiff complains of certain instructions given and of the refusal to give others. Instruction No. 22 as given is assigned as error because by it the court advised the jury that the question whether the defendants had suffered an infringement of their rights in the property not sought to be condemned was a “question of fact for the jury” to determine.

The giving of that instruction was error, but no prejudice resulted from it, because the record shows beyond question that the defendants would suffer an infringement of their rights by the construction of the improvement in the manner proposed. Furthermore, the trial court had in effect already held that such impairment would be suffered and, as above stated, its finding and conclusion in that respect are implied in the verdict. Certain language in the opinion in McCandless v. City of Los Angeles, supra, 214 Cal. 67 [4 P.2d 139], at page 71, is referred to by the defendants as justifying that instruction.

It is there said: “Whether the infringement of her right is special and peculiar to the plaintiff's property and has resulted in a substantial impairment of her right, is a question of fact ...” The purpose of the appeal in that case was to test the sufficiency of the complaint to state a cause of action for damages for an alleged infringement of a property right of the plaintiff.

That was the only question involved on the appeal and in passing on it the following was said immediately after the language last above quoted: “and we think the complaint is sufficient in alleging not only the special and peculiar nature of the infringement as applied to said property, but also the substantial impairment of that right. At least it may not be said as a matter of law that the plaintiff under her allegations has suffered no damage.” When both quotations are considered together it is obvious that the discussion had to do solely with the sufficiency of the complaint to state a cause of action.

The quoted language relied upon by the defendants as justification for the challenged instruction was not as full as it might have been, but it is a correct statement of the law so far as it goes. A more complete statement of the law on the subject would have been that the question whether there has been a substantial impairment of her property right is a question of law, or of fact, or a mixed question of law and fact, for the trial court to determine. In no case is it a “question of fact for the jury” to determine. No error appears because of the refusal to give the plaintiff’s proposed instruction No. 22.

It would have advised the jury that any element of depreciation in market value of the property not sought to be condemned by reason of the construction of the improvement in the manner proposed would be of a general nature and not special and peculiar to the defendants’ property. The subject matter of this instruction was not for the consideration of the jury and was properly refused. Other instructions given are criticized by the plaintiff but we find no error in any of them. No question of the exercise of the police power by the state is involved in this ease.

The case is simply a condemnation suit in which the only questions properly to be determined on appeal are whether the court erred in overruling objections interposed by the state to the introduction of certain evidence on the question of severance damages, whether the court erred prejudicially in the matter of instructions to the jury and whether the verdict is supported by the evidence. There is no other contention of the plaintiff which is not effectively disposed of by the foregoing discussion and authorities. The judgment is affirmed. We concur: Gibson, C. J., Carter, J., and Schauer, J., concurred.