Harris v. Thompson

TYLER, J.,

pro

tem.

Suit in equity to declare a trust in a certain award and judgment procured in a condemnation proceeding for the widening of a street. The action was tried upon the pleadings and a stipulated set of facts restated in effect in the findings of fact of the trial court. They show in substance that on April 25, 1927, a condemnation suit was filed by the City of Los Angeles for the widening of Manchester Avenue. Defendants B. F. Thompson and Frank Alvarez were joined in said suit as owners of leasehold interests in property affected thereby. At the time the condemnation suit was filed, a setback ordinance was in effect, restricting the use of twenty feet of defendant Thompson’s leasehold interest in an oil station located along Manchester Avenue. On January 25, 1928, duly appointed

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referees ascertained that Thompson’s lease would, by its terms, terminate on October 10, 1929. They also found the amount of rent he was paying, and further, that the market value of the lease was greater than the rent paid. They ascertained the market value of the property to be taken, and the severance damage to the remaining portion.

The award to Thompson as the owner of the leasehold was fixed at $1262, and the award to defendant Alvarez, also an owner of a leasehold, was fixed at $350. The award and judgment of the market value of the two leasehold interests was set as of the date the summons was filed. It fixed the bonus value of said leases up to October 10, 1929, the time of the expiration thereof. On January 26, 1929, an interlocutory judgment was docketed affirming the report of the referees. No appeal was taken therefrom and the judgment became final.

On October 11, 1929, the day after Thompson’s lease expired, he surrendered possession, and the respondents took a lease direct from the owner of the fee of all the lot except the twenty feet which had been condemned, and on which the setback ordinance had been in effect since April 25, 1927, approximately two and one-half years.

On December 27, 1929, within one month of the year’s time allowed to the city to pay over the money to defendants, the former lessees, under the provisions of section 1251 of the Code of Civil Procedure, the plaintiffs filed this suit in equity, claiming the money to be derived from the judgment in the condemnation suit. The suit was based upon the theory that as defendants had suffered no injury, they wére not entitled to the award.