Housing Authority v. Superior Court

SHENK, J.

Housing Authority of the city of Oakland seeks the writ of mandamus directing the respondent superior court to issue an order for a writ of possession of property sought to be taken in eminent domain proceedings under the Housing Authorities Law (Stats. Ex. Sess. 1938, p. 9, as amended).

[337]

The petition shows that a proceeding in condemnation to acquire the land and improvements owned by Nick and Mary Simin located in the city of Oakland is pending in the respondent court. On September 13, 1940, a jury fixed the value of the property at $3950 and judgment of condemnation was entered requiring the payment thereof by the condemnor. The petitioner deposited in court the amount of the award and costs. Nick and Mary Simin took an appeal from the final judgment of condemnation. ' Thereupon, on December 2, 1940, the petitioner applied to the respondent court for an order to be let into possession of the premises pending the appeal. The court, after hearing, denied the application, and this proceeding followed.

The petitioner alleges that contracts for the construction of the public housing project have been entered into and involve an expenditure of more than a million dollars; that construction commenced on December 2, 1940; that the real property owned by Nick and Mary Simin is located on the proposed site of the improvement, and that unless the petitioner is placed in immediate possession of the property work on the improvement will be retarded.

The respondent filed an answer alleging that the property sought to be taken consists of a lot 37% by 120 feet, improved by a residence measuring 28 by 58 feet, which is and has been for many years occupied by the Simins and their daughter; that the house consists of five rooms, porch and basement, is unusually well constructed, recently painted and in excellent repair, and that the balance of the lot is covered with well kept gardens, lawn and cement sidewalks; that the purpose of the defendants’ appeal in the condemnation proceeding is not to contest the amount of the jury’s award, but that the principal issue on the appeal is the question of the necessity for the use of said property in the contemplated project and the petitioner’s right to condemn the property; that one of the grounds of the appeal is that there was no evidence that any part of the property, which lies on the outskirts of the contemplated project and would represent less than one per cent of the area of the project, was needed as a part thereof; that the eondemnees greatly desire to retain their property as a permanent dwelling.