People v. Millett

PRESTON (H. L.) J.,

pro

tem.

This is an appeal by defendant Frank Marschall from a judgment entered against him in an eminent domain proceeding.

The facts are briefly these: The state of California, acting through the California highway commission, brought this action to condemn, for highway purposes, a small strip of land in San Mateo County fronting on the county road." The defendant Joseph Millett is the owner of the land sought to be taken, and also the owner of a large area contiguous thereto. On February 3, 1925, Millett and wife leased to defendant and appellant, Frank Marschall, all of the lands owned by Millett, except the dwelling-house, for a term of ten years. The rental for the first three months was $75 per month and $200 per month for the remainder of the lease. Only a very , small portion of the land leased to Marschall is sought to be condemned in these proceedings. Marschall was in possession of the land leased and was

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using the same for an auto camp and garage business. One of the auto camp cottages projected a short distance on to the land sought to be taken, but this cottage was moved by plaintiff to another location on the leased premises.

The new road runs near a garage built by Marschall on premises leased. Plaintiff, however, before the commencement of this action, paid appellant $2,500 damages to the garage and, therefore, the question of damages to the garage is not an issue in this case.

The case was tried before the court without a jury and the court found that Millett had sustained damages in the sum of $2,473.50 for the land taken, and also sustained further damages in the sum of $2,400 by reason of its severance from the balance of the land not taken, making a total sum of $4,873.50, and rendered judgment accordingly.

The court also found that the appellant Marschall had sustained no damages whatever, either by reason of the taking of the small strip under lease, the removal of the cottage or by reason of its severance from the other portion of the land held by him under lease.

Appellant Marschall contends that the court erred in awarding all of the damages to Millett and none to him— that he should have been awarded $2,207 thereof, and prays that the judgment be modified accordingly; or, in other words, he claims that the uncontradicted evidence shows that his leasehold interest was damaged, by reason of the taking of the strip for highway purposes and its severance from the portion not taken, in the sum of $2,207, and that out of the total damages awarded by the court to Millett he should have been paid that amount.