People v. Emerson

MARKS, J.

Plaintiff brought this action in eminent domain to condemn a right of way for a highway across land of the estate of Charles Emerson, deceased. The trial court awarded defendants $37.68 damages for the property taken, and $270.90 severance damages. While the appeal is from the entire judgment plaintiff does not question the correctness of the award of damages for the property taken.

The decedent owned 84.6 acres of land in Kern County which was used as range for cattle. Of this, 3.14 acres were taken for the highway, leaving 30.1 acres to the west and 51.36 acres to the east. The country is rolling and the highway was entirely constructed on fills and in cuts which pre

[674]

vented cattle from crossing it. No cattle crossing was provided.

The only water available for cattle in the district was a spring about two miles easterly from the land in question. Prior to the construction of the new highway, cattle ranging to the west reached the water by passing through a cattle crossing under the old highway which was not far from the location of the new one. As far as the record discloses neither the old cattle crossing nor the spring were on the property of the decedent.

The question of the right to award damages in proceedings of this kind where the basis of the damages awarded was something done elsewhere than on the property of defendant, was settled in the case of

County Sanitation District No. 2 of Los Angeles County

v.

Averill,

8 Cal. App. (2d) 556 [47 Pac. (2d) 786], decided after this appeal was taken. It was there said:

“Appellant advances, as one reason why the court should have received evidence of possible future damage by means of the winds and ocean currents, the rule that all damages sustained by the landowner by reason of the condemnation must be recovered in the action in which the land is taken.

(East Bay Municipal Utilities Dist.

v.