City of Los Angeles v. Schweitzer

FRAMPTON, J. pro tem.

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Appellant in her opening brief states: “This appeal concerns the constitutionality, construction of, and application of 1242.5 of the Code of Civil Procedure. ...” The notice of appeal, dated and filed August 10, 1960, states: “Please Take Notice that defendant herein appeals from that ‘Amended Order Granting Permission to En'ter, Survey and Explore Land’ dated July 18, 1960.”

The background of the litigation is as follows: Respondent city of Los Angeles is a charter city and as such has the power of eminent domain. Such city was in need of a reservoir site. On June 16, 1960, in conjunction with the Department of Water and Power, a department of the city government, the city filed a petition under the provisions of section 1242.5 of the Code of Civil Procedure, seeking permission to enter upon appellant’s land for the purpose of conducting a survey to determine its suitability for a reservoir site. The court ascertained that respondents were acting in good faith and thereupon made its order requiring respondents to deposit cash security in an amount found to have been sufficient to compensate appellant for any damage resulting from the entry, survey and exploration. Respondents made the required deposit, whereupon the court issued its order granting permission for such entry, survey and exploration. On June 24, 1960, appellant filed her motion to amend or modify the order of June 16, 1960. After hearing, and on July 6, 1960, the court modified the original order by increasing the cash deposit from $60 to $1,537, $1,000 of which was to be held as security for the payment of damages, if any, and $537 of which was to be held as security for the payment of attorney’s fees and costs. The trial court also limited the right of entry to 90 days from the date of the deposit of the increased sum. Appellant, in connection with her motion to amend and modify,

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submitted a proposed amended order in which it was provided that respondents’ right to enter, survey and explore would be granted upon condition that 1. respondents furnish appellant “correct copies of all engineering and surveying data necessary to make a topographic map, and a correct copy of the topographic map, together with a map reflecting the descriptions in the complaint.

“2. That thereafter and after furnishing said aforesaid material, plaintiffs are permitted to (1) excavate a maximum of 15 auger holes each 24 inches in diameter and 15 to 20 feet deep, to be refilled, puddled and tamped to ninety per cent firm; (2) excavate a maximum of 15 sidehill trenches 18 inches wide, 6 feet deep, 10 to 12 feet long to be refilled, puddled and tamped to ninety per cent firm; (3) excavate 12 auger holes 6 to 8 inches in diameter and 15 to 20 feet deep to be refilled, puddled and tamped to ninety per cent firm; (4) to use a bulldozer to make a construction road extension southerly of the southerly terminus of the Beverly Ann Fire Road; provided they