Hemmerling v. Tomlev, Inc.

TRAYNOR, C. J. This action involves the condemnation of approximately 1,000 square feet of land (parcel 4) located east of Anaheim in Orange County. The parcel was owned in undivided interests by defendants Arthur E. Hemmerling and Huida M. Hemmerling, a group of corporations, and Holly Wade Davidson. The Hemmerlings appeal from the judgment apportioning the condemnation award.

Parcel 4 was owned in common by defendants subject to an agreement executed by them or their predecessors in interest on February 5, 1926. All of the parties to the agreement individually owned other land in the vicinity of parcel 4. The 1926 agreement provided for the formation of a voluntary, nonprofit association whose members would be the owners of parcel 4. The association’s purpose was to construct and operate a water well and pumping plant on parcel 4 and an irrigation pipeline system from the well to the lands of the members. The agreement set forth the interests of the parties in parcel 4 and provided that each party should share in the costs of installation and maintenance of the well and plant in the proportion of his acreage to the total acreage of all the members. A 1939 amendment provided that the interests of the parties in the water system were appurtenant to their respective separately owned lands. Any party could elect not to take his share of water, and during any period he so elected, he would not be obligated to pay any of the costs of operating the system.

Before the condemnation action was commenced, both the corporations and Davidson elected not to take water from the system until further notice. At the time of the trial their lands were being used for industrial purposes, and no likelihood appears that they will again be used for purposes requiring irrigation. The Hemmerlings, however, continued to take [575]water from the system until the time of trial and were the only owners using water on the date of the filing of the complaint.

In condemning parcel 4 for freeway purposes plaintiff elected to proceed under section 1246.1 of the Code of Civil Procedure, which provides that the total amount of the award for the property is to be first determined as between the plaintiff and all defendants and then apportioned among the defendants in further proceedings.

The parties stipulated “that the total compensation to be paid for the taking of parcel 4 and all interests therein, is the sum of $9,450” and waived findings on this issue. After the trial on the issue of apportionment the court found that the Hemmerlings, the corporations, and Davidson were entitled to share in the award in the proportion that the separate acreage of each bore to the total of their combined separate acreage.