City of Santa Barbara v. Cloer

California Court of Appeal May 14, 1963 No. Civ. 26815Published

Before: Burke

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Holding. The court held that the city possessed the authority to condemn the fee title absolute to the property even prior to the 1961 amendment of Code of Civil Procedure section 1239.4, and that the trial court did not abuse its discretion in allowing the filing of an amended complaint.

Issues

Whether the city had the authority to condemn fee title absolute to property for airport purposes prior to the 1961 amendment of Code of Civil Procedure section 1239.4.
Whether the trial court abused its discretion in permitting the filing of an amended complaint and the reopening of the trial on special issues.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We hold that the plaintiff had the power to condemn the fee title absolute to the property prior to the 1961 amendment and that the latter amendment merely clarified the provisions of section 1239.4”

“The crucial consideration is that the facts alleged in the amended pleading were material to the original pleadings and we hold there was no abuse of the court’s discretion in permitting the amended pleading to be filed.”

BURKE, P. J.

This is an appeal by defendant property owners from a preliminary judgment in condemnation in favor of plaintiff city for the fee title absolute to certain property located in unincorporated territory of the County of Santa Barbara. The city council, by resolution, resolved that public interest and necessity required the acquisition of the property for airport clear zone purposes. It was stated in the resolution that public interest and necessity require the acquisition of the property, and that it be condemned, but the resolution did not expressly recite or determine the necessity for taking the fee title absolute to the property in question.

The complaint was filed February 16, 1961, and defendants answered raising issues of public use, necessity, quantum of estate to be taken and valuation.

A trial was held on all of the issues, except that of valuation, by the court sitting without a jury and the court found that the public use and necessity require the acquisition by the city of the property in fee, reserving to defendants an irrevocable free license to use and occupy the property for all purposes except the erection or maintenance of structures or the growth or maintenance of vegetable life above 19 feet in height.

Thereafter, upon motion which was granted by the court, plaintiff filed an amended complaint together with a new resolution of the city council adopted March 20, 1962, in which resolution the council declared the necessity for obtaining the fee title to the property. A demurrer to the amended complaint was overruled and an answer filed again denying public necessity for the taking or for the proposed improvement or for locating the proposed clear zone over the property of defendants. These issues were tried by the court and the court found that the public use and necessity require the acquisition by the city of the fee title absolute without reservation to the property owners of any estate or right. These proceedings were followed by a jury trial on the issue of valuation and defendants were awarded $14,500 as the fair market

[130]

value of the property as of May 22, 1962, the date of trial. Plaintiff prepared a preliminary judgment and deposited the amount of the award with the clerk.

City of Santa Barbara v. Cloer

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BURKE, P. J.

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