City of San Jose v. Wilcox

STURTEVANT, J.

The petitioner, Martin Frankel, filed a petition asking that he he permitted to intervene and file an answer and cross-complaint. The request was denied. He then asked a rehearing. Later his request was again denied. From said orders he has appealed.

Some time prior to the 16th day of September, 1931, the plaintiff had granted to the Southern Pacific Company the right to construct a one track railroad over and along certain streets. By the terms of that franchise the railroad would cross The Alameda, one of the streets located in San Jose. That franchise provided that a subway should be constructed in The Alameda under said railroad track and plaintiff

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should pay for all damage to property except railroad property. To exercise such right the plaintiff filed a complaint seeking to condemn two parcels of land in San Jose. One parcel was owned by Mr. I. M. Wilcox. It was located on the northeast corner of The Alameda and White Street. The other parcel was owned by Elizabeth and Ellen Morrison. It was located on the west side of Stockton Avenue. The action was commenced September 16, 1931, and the city of San Jose was then given an order to take and did take immediate possession of the properties described in the complaint. Mr. Wilcox and the plaintiff executed a stipulation authorizing the plaintiff to take judgment and fixing the amount of damages to be paid to Mr. Wilcox. That stipulation was executed July 19, 1932. A similar stipulation was executed by the other owners at about the same time. All owners have been paid pursuant to said stipulations; but the petitioner expressly affirms that no summons was returned in the condemnation proceeding. The petitioner is not interested in either of said parcels. April 26, 1932, the construction of the subway was completed. In January, 1936, Louis Frankel bought another parcel. On December 23, 1938, he conveyed it to his son Martin, who is the petitioner herein. Said parcel is located on the north line of West Santa Clara Street and does not touch either of the parcels hereinabove described.

On February 18, 1937, Louis Frankel and Hattie Frankel commenced an action against this plaintiff and others to recover'damages. (No. 48851 Records of Santa Clara County.) The allegations of the complaint in that action show that it was commenced for the purpose of recovering the same damages which the petitioner seeks to recover under the answer and cross-complaint which he sought permission to file in this action.