Crockett Land & Cattle Co. v. American Toll Bridge Co.

SEAWELL, J.

The sole question presented by this appeal is as to the relative rights of the parties herein as defined by the decree of condemnation rendered in favor of the assignor of respondent American Toll Bridge Company of California, wherein a strip of land containing seven-tenths of an acre, owned by appellant, was condemned as

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and for a viaduct and approach to the Carquinez Straits bridge. Said bridge is a structure of great magnitude and spans the Carquinez Straits, a navigable body of water, at a point between San Pablo and Suisun Bays. Its northerly viaduct and approach rests on Solano County soil and its southerly viaduct and approach are built on Contra Costa County soil. It is with the latter situation that this appeal has to do.

On February 5, 1923, the board of supervisors of Contra Costa County granted to Rodeo-Vallejo Ferry Company a franchise to construct, operate and maintain said bridge and subsequently its rights in the premises were sold and transferred to respondent American Toll Bridge Company of California. Said Toll Bridge Company having been let into the possession of said seven-tenths acre strip upon complying with the decree requiring the payment of $5,000 as the value of said strip, as found by the jury, and the additional sum of $1,000, fixed by the court as a fund to ,pay any further damages or costs that might be recovered in said proceeding, as well as all damages that might be sustained if for any cause the property should not be finally taken for said public use, built thereon one small residence and moved thereon another and constructed two garages, ■all- of which are located beneath the floor level of the bridge at depths varying from 35 to 120 feet below said floor level. Said two small residence houses are occupied exclusively by its toll-gatherers, watchmen and other employees, who, in addition to the performance of other duties, are charged with the duty of inspection and reporting any structural or serious changes which might threaten the safety of the bridge, as well as protecting it against the acts of maliciously disposed persons or fortuitous events.

Appellant claims the right to occupy said houses on the theory that the condemnation proceedings did not vest the fee of said seven-tenths acre in the condemner. In fact, it is contended that under the provisions of .section 1239 of the Code of Civil Procedure, subdivision 1, the Toll Bridge Company had not the right to condemn the fee, but an easement only in said lands and that the occupancy of the whole of said strip is not necessary for the use and enjoyment of said easement. Said statute provides: “The fol