People v. Bowers

California Court of Appeal Apr 20, 1964 No. Civ. 21518Published

Before: Agee

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Holding. The court held that severance damages are unavailable when the property taken and the remaining property are separated by an intervening fee ownership, as this destroys the required physical contiguity.

Issues

Whether the separation of property by an intervening fee ownership precludes recovery of severance damages.
Whether an easement by implied reservation or necessity exists to establish contiguity between two parcels separated by a fee-owned strip.

Disposition. affirmed

Quotations verified verbatim against the opinion

“where the part taken and the remaining part are separated by an intervening fee ownership, the necessary physical contiguity is destroyed.”

“In the instant case such unity of ownership in the original 98.21-acre tract was destroyed when Litch conveyed the fee of an inside portion thereof to the Union Lumber Company.”

AGEE, J.

In this eminent domain action defendants appeal only from that portion of the judgment denying them any severance damages. The trial court withdrew this issue from the jury on the ground that there was no physical contiguity between the defendants’ property which remained and that which was taken. The jury valued the take at $12,500 and appellants accepted this amount as full payment therefor.

Appellants’ property was originally part of a 98.21-acre tract conveyed by deed to George P. Litch on April 1, 1912. The property is in Mendocino County and lies along the coastline of the Pacific Ocean.

On June 15, 1914, Litch deeded a strip 50.1 feet wide to the Union Lumber Company on which it thereafter constructed a railroad for use in its logging operations. This strip ran north-south through Litch’s entire holding, a distance of approximately 2,250 feet and comprising 2.58 acres.

The deed to the lumber company contained no reservation of any easement or right to cross over said strip from one side to the other. The company fenced its property on both sides.

On December 1, 1937, Ditch’s widow deeded the entire tract to Alex and Olive Cameron, expressly excepting therefrom the 2.58 acres previously conveyed to the lumber company.

On October 2, 1946, Olive Cameron, as surviving owner, deeded all of her “right, title and interest” in the most northerly portion of the tract to appellants. The outside boundary lines of this portion form a rough rectangle, with the northerly side 1,500 feet in length, the westerly side 750 feet, the southerly side 1,800 feet and the easterly side

619

[465]

feet. Excluding the land within these boundary lines which is owned by the lumber company, the property conveyed to appellants comprises a total of 22.68 acres.

About 1950, the lumber company removed the rails and constructed a paved private vehicular road over its property for use in its logging operations.

Appellants’ property lying between the west side of the logging road and the ocean comprises 3.2 acres, all of which are being taken for state park purposes. The remaining 19.48 acres are on the other side of the road and extend to State Highway 1 on the east. None of the property is improved. It has been used from time to time for cattle grazing. During the trial the take was referred to as the “seaward parcel” and the remaining land as the ' ‘ inland parcel. ’'

People v. Bowers

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AGEE, J.

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