People Ex Rel. Department of Public Works v. Pera

WOOD (Fred B.), J. pro tem.

*

In this proceeding in eminent domain the defendant landowners have appealed from a judgment awarding them $12,852 for the 3.048 acres taken and $934.50 for severance damages for the 8.742 acres not taken. The land taken by the state is for exchange with a railway company for a portion of the latter’s right of way needed for highway purposes.

The only instruction given which defendant now claims erroneous is a definition of just compensation: “The term ‘just compensation’ means ‘just’ not only to the party whose property is taken for public use but also ‘just’ to the public which is to pay for it.” We think this a fair and an accurate statement. The court had told the jury it had the

[500]

duty of fixing ‘1 The just compensation in accordance with the evidence . . . guided by the rules of law which the court will give you . . followed by an instruction on burden of proof. Then came the questioned instruction, followed by an appropriate, full and accurate exposition of the applicable rules of law. In such a context we perceive no error in the giving of the questioned instruction. We note that it stopped short of emphasizing the interest of the jurors as taxpayers which was the vice of the instruction criticized in

People

v.

Loop,

127 Cal.App.2d 786, 805 [274 P.2d 885].

Defendants assign error in the refusal to give their instructions that income in the form of rent and that an offer for purchase of the property, if the jury should find that such an offer had been made, are proper elements for consideration in fixing the market value. These instructions were not needed. They singled out and emphasized certain elements that were adequately covered by the instructions that were given. In its instructions the court among other things appropriately defined market value and severance damages and how they are determined, and informed the jury of its duty to consider the evidence and weigh it, giving due consideration to all of the available uses of the land. At the instance of plaintiff, the court told the jurymen that in estimating market value they might judge the weight and force of the evidence by their general knowledge of the subject which they had acquired by experience and observation, and, at the instance of defendants, that they should consider the same elements of value as would be considered by private parties in negotiating a sale or rental of private property, taking into account all factors that fairly might be brought forward and reasonably be given substantial weight in fair negotiations between an owner willing to sell and a purchaser willing to buy, giving consideration to all those elements which owners or prospective purchasers generally could reasonably urge or rely upon, in fair negotiations, as affecting the fair value of the property.