People v. Ayer

PULLEN, P. J.

This action in eminent domain was instituted by the state to condemn an easement through certain property for the purpose of constructing and maintaining a highway. The cause was tried and a judgment was entered upon the verdict of a jury awarding the owner of the lands $100 for the property taken, and $1400 for severance damages.

During the trial the People contended that Ayer was the owner of a strip of land between the easterly line of block 86 of the townsite of Red Bluff and the Sacramento River, but the ownership or extent of this narrow strip of land which had been built up by accretions of the river, was not determined. If such a piece of land was found to belong to Ayer he had a means of ingress and egress to and from his land and that was not cut off by the highway, and it was therefore important to determine that fact in order that the jury might

[79]

properly fix the severance damages. This particular issue was not presented to the jury and the judgment based upon the verdict was reversed. In a former opinion

(People

v.

Ayer,

18 Cal. App. (2d) 755 [64 Pac. (2d) 769]), we said:

“Whether or not Mr. Ayer is the present owner of the strip of land in question, we do not know, and whether it extended from Brewery Creek to Douglas Street is also a question of fact to be determined, but we are of the opinion the court erred in holding as a matter of law that Ayer had no title to any lands in Section 20, lying south of the mouth of Brewery Creek, and the cause should be returned for further inquiry upon this issue. It is therefore so ordered. The judgment is reversed.”

The action was again brought to trial, and upon the retrial the court limited the issue as to the ownership by Ayer of the strip of land in question. Counsel for plaintiffs demanded a jury and contended there should be a trial

de novo,

inasmuch as the judgment in the former trial had been reversed by this court. This request was refused and the issues were limited to the ownership and location of the particular strip of land. At the conclusion of the hearing the court made supplementary findings of fact and conclusions of law holding that defendant Ayer had no right, title or interest in the small parcel of land in question, and that, such land was not a means of ingress and egress to and from the property described in the complaint. From this judgment of the trial court the People have again appealed.