People v. Milton

California Court of Appeal Nov 21, 1939 No. Civ. 12293Published

Before: White

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Holding. The court held that the appellant failed to properly raise issues regarding the necessity of the land taken, the nature of the estate acquired, and the validity of the resolution of necessity in the trial court, and that the State Highway Commission is authorized to acquire property in fee simple.

Issues

Whether the appellant could challenge the necessity of the land taken for the first time on appeal without having pleaded fraud, bad faith, or abuse of discretion.
Whether the state is limited to condemning an easement rather than a fee simple interest for highway purposes.
Whether the resolution of necessity required a two-thirds vote of the Highway Commission.

Disposition. affirmed

Quotations verified verbatim against the opinion

“When the State Highway Commission, as it did in the case at bar, adopts a resolution declaring that public interest and necessity require the acquisition of certain real property for public improvements, that resolution becomes conclusive”

“The right of the state to take an estate in fee rather than an easement is unequivocally established by section 104 of the Streets and Highways Code”

“The legality of the commission’s action cannot be challenged for the first time on appeal.”

WHITE, J.

This is an appeal by the defendant, Hildegarde M. Milton, from a decree in a suit involving eminent domain.

The action was commenced by the People of the State of California, acting by and through the Department of Public Works, to condemn a strip of land for highway purposes, extending from a point on State Highway Route No. 165 near the Los Angeles River in the city of Los Angeles, to a point on State Highway Route No. 161, in the city of Pasadena at Broadway Avenue, all in the county of Los Angeles. Appellant owned certain property along the route of the proposed highway described in the pleadings as parcel number 1 and containing 17,850 square feet.

The cause was tried before a jury. Plaintiff established a

prima facie

case based on the right of eminent domain, the exhibits in support thereof being received in evidence without objection on the part of the appellant. Thereupon expert testimony was offered by appellant as to the value of her property, after which she rested her case. Thereupon plaintiff produced expert witnesses in rebuttal to establish the value of appellant’s property in its entirety, no evidence being offered by either the People or appellant as to any severance damage. Both parties having rested, the court instructed the jury, which after deliberation returned a verdict fixing the value of appellant’s property at $5,500.

[552]

The first ground of appeal advanced by appellant is that certain of her land sought to be condemned was in excess of that needed for the contemplated public improvement and could not be taken without her written consent. It is true that under subdivision b of section 104 of the Streets and Highways Code, whenever it is sought to condemn property for the purpose of exchanging the same for other real property to be used for rights of way, that real property may be acquired for such purposes only when the owner of the property needed for a right of way has agreed in writing to the exchange; but such an issue was not raised or framed in the instant case either by the pleadings or by the evidence at the trial. While such an issue may properly become one for judicial determination, it must be raised by appropriate and adequate pleadings. Appellant’s general denial in her answer of the allegations contained in plaintiff’s complaint does not constitute a denial that the land was intended to be used for public purposes.

People v. Milton

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WHITE, J.

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