People Ex Rel. Department of Public Works v. Salem Development Co.

BROWN (G.), J.

The defendant Salem Development Co., Inc., has appealed from that portion of a judgment in an eminent domain proceeding which fails to allow interest on an award, and from an order of the court refusing to charge the jury with defendant’s proposed instruction respecting interest. The latter point is of no concern for the reason that if defendant is entitled to interest it is not a factual situation to be decided or calculated by the jury, but follows as a matter of law without the necessity of a jury instruction. There was no error in refusing the instruction. (Code Civ. Proe., § 2102.)

On August 19, 1960, the People sued to condemn app

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ellant’s unimproved property for freeway purposes. On August 23, 1960, an order for possession of the property was signed by the court and entered by the clerk, authorizing respondent to take immediate possession upon compliance with section 1243.5 of the Code of Civil Procedure, with the provision “that the effective date of this Order for Possession for purposes of section 1255b of the Code of Civil Procedure shall be the date stated for the taking of physical possession of said property contained in the notice required by section 1243.5 of the Code of Civil Procedure.” It is this last provision which forms the issue upon which this appeal is taken. There was no notice served under section 1243.5 of the Code of Civil Procedure. Respondent People did not take possession of the property until after trial and judgment.

The language of section 1255b of the Code of Civil Procedure as it existed August 23, 1960, provides: “If the plaintiff in a condemnation proceeding obtains an order from the court for possession of the property sought to be condemned prior to the trial of the action, then the compensation and damages awarded shall draw lawful interest from the effective date of said order. ’ ’

Section 1243.5 of the Code of Civil Procedure, as it existed in 1960, reads in part: “ (a) In any ease in which the State, . . . takes immediate possession of lands to be used for . . . a right of way, pursuant to Section 14 of Article I of the Constitution of this State, the State, . . . shall, at least three days prior to the time possession is taken, personally serve on or mail to the record owner or owners of the property, if known, and the person or persons in possession of the property, if any, either a copy of the order of the court authorizing such possession or a notice thereof. ...”