Yeshiva Torath Emeth Academy v. University of Southern California

SHINN, P. J.

This is an appeal by the plaintiff, Yeshiva Torath Emeth Academy, from a judgment in favor of the defendant, University of Southern California, entered upon an order sustaining a demurrer without leave to amend in a condemnation action. The essence of the ground of general demurrer is that the complaint fails to state a cause of action in that the proposed condemnation is not for a public use as authorized by the Legislature.

The complaint alleges that plaintiff, a private corporation, is an educational institution, having a student body of approximately 150 elementary grade students; it operates an elementary school with facilities available to the general

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public; it seeks to condemn property it is using under lease from defendant so that it may continue to so utilize the property.

The sole question is whether a private institution, not of collegiate grade level, may maintain an action to condemn property for use as an elementary school.

The court answered the question correctly when it granted judgment for defendant on demurrer. Plaintiff is attempting to exercise a right it does not possess.

In the opening brief plaintiff says: “Briefly it is the position of the appellant that if a school district has the right of eminent domain to condemn land for an elementary school, plaintiff under the provisions of Civil Code, § 1001 has the same right.”

Section 1001 reads: “Any person may, without further legislative action, acquire private property for any use specified in section [1238] of the Code of Civil Procedure either by consent of the owner or by proceedings had under the provisions of title seven, part three, of the Code of Civil Procedure ; and any person seeking to acquire property for any of the uses mentioned in such title is ‘an agent of the State,’ or a ‘person in charge of such use, ’ within the meaning of those terms as used in such title,” etc.

Section 1238, Code of Civil Procedure, reads in part: ‘ ‘ Subject to the provisions of this title, the right of eminent domain may be exercised in behalf of the following public uses: . . . 2. . . . any institution within the State of California which is exempt from taxation under the provisions of Section la, of Article XIII of the Constitution of the State of California,[