City of Hayward v. Unger

DRAPER, J.

Defendant lessee appeals from judgment in this eminent domain proceeding, which was tried to the court sitting without a jury.

Plaintiff city proposed to widen

“A”

Street for but one block. Appellant is the lessee of a store building on the north side of this street. Immediately adjoining the leasehold, on the west, is the corner lot, occupied by a department store. For what it describes as “economic reasons’’ the city decided not to take as much of this corner property as of the remainder of the block. The result is that the building occupied by appellant was moved back so that its front line is set back 3 feet farther than that of the building immediately to the west. The resulting adverse effect upon visibility of appellant’s building and of a sign formerly projecting beyond it are the items of claimed damage here in dispute. The owner of the building settled its claim for the property actually taken by the city, but a stipulation reserved to appellant its claim for severance damages, if any, to the leasehold. Only this issue was tried.

The trial court found that severance damages were suffered, but that the improvement benefitted the leasehold by an amount exceeding such damage, and entered judgment allowing appellant no compensation (Code Civ. Proc., § 1248, subd. 3).

Appellant asserts error in the allowance of special

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benefits as an offset to the lessee’s severance damages. Much of the argument is directed to the facts. But the record makes clear that the expert witness upon this subject was fully advised of the distinction between general and special benefits. He testified that the widening of this block of “A” Street increased the flow of traffic past appellant’s store, and thus directly and specially benefitted appellant’s property, over and above the general benefit to the neighborhood. This evidence supports the factual determination of the trial court. Beyond this, the argument upon the facts is not for this forum.

Appellant does, however, suggest that as a matter of law increase of traffic is a general, rather than a special benefit. The rule is clear that only special benefits, which directly enhance the value of the property remaining after condemnation, can be offset against severance damages. General benefits, accruing to the community or the neighborhood as a whole, cannot be so offset