SHAW, J., Dissenting.
I dissent from the judgment of reversal and from that part of the opinion holding that the sum of fifteen dollars is an inadequate allowance for the value
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of the estate to be taken by plaintiff from the Pacific Electric Railway Company in the strips of land used by it for its railway between Los Angeles and Santa Monica. The amount allowed was fifteen dollars and not ten dollars as stated in the main opinion.
The Railway Company originally acquired these strips of land as a place whereon to lay its railway tracks and place its poles, wires, and other appliances appurtenant thereto along that part of its line. Thereafter it built its tracks, established its line, and has ever since maintained and operated its railway system upon and over said strips. It acquired the fee-simple title to the land. The estate therein necessary for railway purposes, however, was not a fee, but only an easement.
The record shows that the city did not seek nor ask to condemn or take this easement, this right of use by the Pacific Electric Railway Company for its railway, but that, on the contrary, the court below, in pursuance of a stipulation between the parties, stated in its conclusions of law that this easement for railway purposes, with all its appurtenant structures and appliances, should be reserved to and was to remain in the Railway Company, and that the city was to acquire only an easement in the land for public use as a street, but subordinate to the right or easement of the Railway Company aforesaid.
An estate in fee is divisible in various ways not involving a division of the surface of the land. It may be divided into a number of qualified estates. Different easements or subordinate estates may be carved out of the fee, and such easements or estates may be sold separately and to different persons by the owner of the fee. The Railway Company, if it had so desired, could have conveyed its railway, with the easement necessary for its maintenance and operation, to one person, a subordinate easement for the servient use of the land as a public street to another person, and the fee burdened with these two easements to still another. Being separable interests or estates in the land, they are susceptible of a separate valuation.
The only property proposed to be taken by the city was the subordinate easement for a public street. For this taking the Railway Company was entitled to the just value of the estate taken. This value was to be, and was, ascertained and
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found by the court below from the evidence. There was abundant evidence to the effect that the value thereof did not exceed the fifteen dollars allowed. This is admitted. The testimony was that the strips of land subject to a perpetual easement for railway purposes had no substantial value. A mere subordinate easement would, of course, have even less value.
There remains as an element of value only the remote possibility that at some unknown time in the future, in the uncertain course of future events and developments, the Railway Company may cease or abandon the operation of its line, or, that its right to do so may be forfeited, in which case the servient fee, relieved of the depreciative burden of railway use, would again become of value as unburdened land, if not appropriated to public use as a street. If this could be assumed to occur at a definite time in the future, it would afford a basis for estimating a present value equal to the present worth of the value when the event occurred and payable at that time. The time, of course, cannot be predicted. No attempt was made at the trial to do so, or to elicit from any witness a valuation based on the uncertain contingency of a cessation of the railway use or the forfeiture of the right. The possibility of an abandonment or forfeiture, or of a present value arising from such future possibility, was not even suggested. The only evidence of value consisted of varying estimates based on the hypothesis that the land was burdened with a perpetual easement for railway use.
In these circumstances all that this court can properly say as to the value of this subordinate easement to be taken by the city is that the court below has made a finding that its value is fifteen dollars and that this finding is fully supported by legal evidence given at the trial. There are no facts of which the court can take judicial notice that would defeat the effect of this evidence.
There is another branch of the case, the question of damages to property not taken, caused by the public use to which the city proposes to devote the easement which is to be taken. This appears to have produced some confusion of ideas on the question of the value of the estate actually taken. The owner of land taken for a public use is entitled not only to the value of the land actually taken, or of the estate or interest that is actually taken from him in such land, but also
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to the damages which such taking will directly cause to property belonging to him which is not taken. The Constitution declares that “private property shall not be taken or
damaged
for public use without just compensation.” The act of 1903, under which this action was begun, provides that the' court shall find, separately, first, the value of each parcel of land to be'taken “and each separate” estate or interest therein”; second, if the part taken is part of a larger parcel, the damages which will accrue to the part not taken “and to each separate estate or interest therein,” by reason of its'severance from the part taken and the construction of the improvement in the manner proposed by the plaintiff (sec. 10, Stats. 1903, p. 376). The code, which that act adopts for the mode of procedure by action, contains substantially the same provisions on the subject. (Code Civ. Proc., sec. 1248, subds. 1, 2.) The" damage caused to an easement by the taking of a’subordinate easement for public use may not be well described either in the code or in the act of 1903, but it is covered by the constitutional guarantee, and therefore it was properly allowed and its payment imposed by the court as a condition precedent to the taking.
There was evidence to the effect that the appropriation of the surface of these strips of land to use as a street, though subordinate and subject to the use for railway purposes, would nevertheless entail greater expense upon the railway in the maintenance and operation of its railway system, because of 'the necessity of adjusting its tracks to the grade established for the street and because of the greater dangers to persons rightfully using the street for ordinary travel. This would require greater care to avoid injuring them and subject the Railway Company to increased liability to damages growing out of the negligence of its employees in that respect.
This element of damage forms no part of the value of the easement actually taken. It affects only the estate which is not taken but which is to remain in and belong to the Railway Company as before, that is, its paramount right to the continuous use of said strips of land for railway purposes. It is, properly speaking, damages caused to the property not taken, damages thereto caused by the use to be made of the property actually taken. This damage was also the subject of testimony given at the trial, and upon that evidence the court be
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low allowed the Railway Company, as compensation, the sum of twenty-six thousand nine hundred dollars.
It is further claimed that the use as a street will prevent the Railway Company from storing ties or other railway material on the parts of the strips adjoining the tracks, temporarily, for the convenient making of repairs or other operations in the maintenance of the railway use, and from building waiting-stations, sidetracks, or other structures convenient for railway operation and maintenance, on the parts not occupied by the tracks nor necessary for the passing of cars over them. These rights constitute a part of the easement for railway purposes which is to be reserved to the company, and with which, according to the stipulation, the use as a street must not interfere, and are not to be considered as elements of damage or value.
The incidental interference with these operations arising from the public use as a street constitutes a damage to the railway easement not taken and is included in the aforesaid damage allowance. The right to store ties or other material on the adjacent ground for purposes not necessary for immediate repair or maintenance was not shown to be of value and was not the subject of separate investigation at the trial. The court cannot know judicially that it has a substantial value. The right to take away the soil and to use it in other ways not inconsistent with the railway use was taken into consideration by the witnesses who testified to the value of the property taken, and the findings based on that testimony are conclusive upon this court on appeal.
In my opinion the findings of value and damages are supported by the evidence and the conclusions of law thereon are correct. By inadvertence the judgment as drawn does not conform to the findings and conclusions of law, in that it does not contain the reservation to the Railway Company of its paramount easement for railway purposes. But this is plainly a mistake and could be remedied by modifying the judgment.
Sloss, J., concurred.