KENNARD, J., Concurring and Dissenting. Without any good reason for doing so, the majority abandons California’s adherence to a long-established rule of American law followed by most other states. The rule in question operates in the field of just compensation for property taken for use by the government, specifically in cases where the government appropriates only a [723]portion of a landowner’s parcel of real property. In such cases, the landowner receives, in addition to compensation for the portion taken, compensation for damages to the remainder not taken. (Code Civ. Proc., §§ 1263.310, 1263.410.) The Legislature has provided by statute that damages to the remainder are to be offset by the amount of any “benefit to the remainder.” (Id., § 1263.410, subd. (b).) The rule at issue here, which California courts have followed since 1902, provides that special benefits to the remainder, but not general benefits, are deducted from the damages to the remainder that are otherwise compensable. (Beveridge v. Lewis (1902) 137 Cal. 619 [70 P. 1083].) General benefits are those shared by all properties in the locale of the government project for which the property was taken. Special benefits, on the other hand, are not shared by all properties in the locality, but have some degree of uniqueness to the landowner’s parcel.
The majority rejects the special benefit rule and holds that the landowner’s recovery for damage to the remainder should be reduced by the amount of all benefits, whether special or general, to the remainder. Because the existing rule limiting the reduction of a landowner’s damages to only the amount of special benefits is fairer than the majority’s holding and because it is a workable rule that has withstood the test of time, I dissent.
I
Defendant Continental Development Corporation (Continental) owned a triangular-shaped parcel of property, approximately 4.43 acres in area. Plaintiff Los Angeles Metropolitan Transportation Authority (MTA), in connection with the construction of its Green Line rail transit project, desired to run its elevated rail guideway along the northeast side of Continental’s parcel. That side of Continental’s property was 785 feet long and bordered an existing railroad right-of-way. The MTA filed an action to take an air rights easement approximately 5 feet wide running the entire length of the northeast side of Continental’s parcel, 375 square feet of land in fee located within the easement, and a temporary construction easement.
When the MTA filed the condemnation action, Continental already had plans to construct an office building, but had not yet commenced construction. Because the taking necessitated setting back the building from the elevated rail guideway to provide a fire line, Continental revised its plans, relocating the building about 30 feet from the Green Line. By the time of trial, it had constructed a four-story office building on the lot. Continental also incurred expenses for laminating the building’s windows on the side facing the Green Line in order to reduce noise.
[724]Continental claimed damages to the remainder of its severed parcel as follows: (1) the cost of revising its building plans ($23,123); (2) the cost of laminating the windows on the side of the building facing the Green Line and additional future costs to design, manufacture, and install double-paned windows to further reduce noise levels ($416,604); and (3) the capitalized reduction in rental value due to view and light impairment of offices located on the Green Line side of the building (over $1 million).
One of the Green Line stations, the Douglas Street Station, is located approximately 1,613 feet from Continental’s parcel. At a pretrial hearing, the MTA claimed that the proximity of Continental’s parcel to the Douglas Street Station was a special benefit worth millions of dollars which should be offset against Continental’s claimed severance damages. The trial court ruled that the proximity of the Douglas Street Station to the remainder of Continental’s parcel was not a special benefit.
The jury awarded Continental $1,122,149 in damages, including: (1) the value of the land taken in fee ($11,936); (2) the value of the air easement and temporary construction easement ($94,420); and (3) damages to the remainder ($1,015,793).
Continental moved for litigation expenses under Code of Civil Procedure section 1250.410,1 which allows a court to award litigation expenses upon finding that the condemner’s offer was unreasonable and the condemnee’s demand was reasonable “viewed in the light of the evidence admitted and the compensation awarded in the proceeding.” The trial court denied Continental’s motion for expenses.
On appeal, the Court of Appeal affirmed the trial court’s determination that proximity to the Douglas Street Station was a general benefit, and therefore the MTA was not entitled to offset that benefit against the damages to the remainder. The Court of Appeal reversed the trial court’s denial of Continental’s litigation expenses.
II
I begin with a description of the constitutional and statutory provisions for just compensation that are relevant to the question of what benefits should be offset against the damages to the remainder when a partial taking occurs. Our state Constitution requires the government to pay “just compensation” for property “taken or damaged.” (Cal. Const., art. I, § 19.) To fulfill this [725]constitutional obligation, the Legislature has created a detailed statutory scheme for providing just compensation. This statutory scheme specifically addresses the determination of just compensation in partial takings cases.
The Legislature has recognized that when the government takes only a portion of a parcel of land, the landowner’s losses are not necessarily limited to the value of the portion actually taken. In order to account for both the value of the portion taken and the landowner’s other losses, it has provided the following.
First, the landowner receives the fair market value of the portion of the parcel that is actually taken. (§ 1263.310.) This amount is separately computed independent of any other losses. (§ 1260.230, subd. (a).) The portion taken is valued by itself, without regard to the fact that it was part of a larger parcel. (§ 1263.320.) Also disregarded is any increase or decrease in value attributable to the project itself. (§ 1263.330.) Compensation for the portion taken is never reduced by any benefit the project provides to the remainder. (§ 1263.410.) Thus, compensation for the portion taken is limited to its fair market value as an independent unit of property, without regard to the taken portion’s existence as a part of a larger parcel, the effect of the project on the portion taken, or the effect of the project on the remainder of the parcel.
Next, the damage caused to the remainder by the severance of the portion taken from the remainder is computed. (§§ 1260.230, subd. (b)(1), 1263.420, subd. (a).) Conceptually, this amount can be conceived of as the difference between the fair market value (absent the project) of the parcel as a whole and the sum of the fair market values (computed separately and without regard to any benefits or depreciation caused by the project) of the property taken and of the remainder.
In providing that the landowner may recover for the damage caused by the severance of the portion taken from the remainder, the Legislature has implicitly recognized that the value of a whole parcel of land is often greater than the sum of its parts. A larger parcel presents more opportunities for use and development than do a number of isolated smaller parcels of similar condition with the same total area. A tall building feasible technically and economically on a large parcel may be more than twice as large as the buildings that may be feasibly built on two separate parcels each half the area of the large parcel; a large parcel that can be economically farmed as a unit may be uneconomic for that use when it is divided by a limited-access freeway that requires farm machinery to be transported long distances between the two portions of the remainder.
[726]Returning to the statutory method of calculating damages for a partial taking, the next step is as follows: Any damage to the remainder caused by the effects of the project’s construction and use is calculated, and is then added to the previously calculated damage resulting from severance of the portion taken from the remainder. (§ 1263.420, subd. (b).)
Finally, this sum of damages to the remainder is reduced by “the amount of the benefit to the remainder” (§ 1263.410, subd. (b).) The “[bjenefit to the remainder is the benefit, if any, caused by the construction and use of the project for which the property is taken.” (§ 1263.430.)
Although the statutes in question that use the term “benefit,” sections 1263.410 and 1263.430, do not define it, their legislative history reveals that the Legislature intended to continue existing law with its distinction between special and general benefits, while permitting that body of law to continue to evolve judicially. These statutes were enacted in 1975 as part of a comprehensive revision of the statutes governing eminent domain law proposed by the California Law Revision Commission and adopted by the Legislature. (Stats. 1975, ch. 1275, § 2, p. 3452.) In its commentary to section 1263.430, the Law Revision Commission stated: “Section 1263.430 codifies prior law by defining the benefit to the remainder that may be offset against damage to the remainder in an eminent domain proceeding. . . . Section 1263.430 does not abrogate any court-developed rules relating to the offset of benefits nor does it impair the ability of the courts to continue to develop the law in this area. See Beveridge v. Lewis, 137 Cal. 619, 70 P. 1083 (1902) (only ‘special’ benefits may be offset).” (Cal. Law Revision Com. com., 19A West’s Ann. Code Civ. Proc. (1982 ed.) foll. § 1263.430, p. 82.)
As the Law Revision Commission’s commentary notes, this court in 1902 first adopted the distinction between general and special benefits in Beveridge v. Lewis, supra, 137 Cal. 619. General benefits are those enjoyed by the entire locality affected by a project. (See id. at pp. 623-624 [“General benefits consist in an increase in the value of land common to the community generally, from advantages which will accrue to the community from the improvement.”], 625; United States v. River Rouge Co. (1926) 269 U.S. 411, 415-416 [46 S.Ct. 144, 146, 70 L.Ed. 339] [“a benefit common to all the lands in the vicinity”]; BAJI No. 11.95 (8th ed. 1994); 3 Nichols on Eminent Domain (rev. 3d ed. 1992) § 8A.04[2], p. 8A-38 [“General benefits have been described as those benefits which result from the fulfillment of the public project which necessitated the taking and are common to all lands in the vicinity of the condemnee’s property.”]; Randolph, The Law of Eminent Domain in the United States (1894) § 269, p. 250 [“A general benefit is an [727]advantage not peculiar to the remainder of a tract part of which is taken, but conferred by the public work upon all property within range of its utility.”].) The increase in traffic generated by a new surface road leading to an existing commercial district would usually be a general benefit to all the property within the area served by the road. (See Pierpont Inn, Inc. v. State of California (1969) 70 Cal.2d 282, 295-296 [74 Cal.Rptr. 521, 449 P.2d 737].)
Special benefits, by contrast, have some direct and peculiar relationship to the remainder, often arising from the contiguity of the remainder and the project. (Beveridge v. Lewis, supra, 137 Cal. 619, 624, 626; BAJI No. 11.95 (8th ed. 1994); 3 Nichols on Eminent Domain, supra, § 8A.04[2], p. 8A-39 [“Special benefits are those which arise from the peculiar relation of the land in question to the public improvement.”]; Annot., Eminent Domain: Deduction of Benefits in Determining Compensation or Damages in Proceedings Involving Opening, Widening, or Otherwise Altering Highway (1967) 13 A.L.R.3d 1149, 1168 [“Special benefits have been defined in a number of instances as those which inure directly and peculiarly to the property in question, and not to all neighboring and similarly situated property in general.”].) In Beveridge, our court described special benefits as those which “result from the mere construction of the improvement, and are peculiar to the land in question.” (Beveridge v. Lewis, supra, 137 Cal. at p. 624.) To continue with the example of a new road discussed above, if the new road bisects an existing parcel, the new frontage it creates for the two remainders of the parcel would usually be a special benefit to those remainders. (Los Angeles v. Marblehead Land Co. (1928) 95 Cal.App. 602, 614-615 [273 P. 131] [new highway frontage created in remainder was a special benefit]; 3 Nichols on Eminent Domain, supra, § 8A.04[2][b], p. 8A-51.) As courts and commentators have recognized and as the majority acknowledges, special benefits need not be absolutely unique to the remainder (maj. opn., ante, at p. 708). (People ex rel. Dept. Pub. Wks. v. Giumarra Farms, Inc. (1971) 22 Cal.App.3d 98, 104 [99 Cal.Rptr. 272]; BAJI No. 11.95 (8th ed. 1994); see also United States v. River Rouge Co., supra, 269 U.S. 411, 415-416 [46 S.Ct. 144, 145-146]; 3 Nichols on Eminent Domain, supra, § 8A.04[2], pp. 8A-39 to 8A-44 [collecting cases].) In River Rouge Co., for example, the government took portions of a number of riparian parcels for the purpose of dredging and widening a channel to make the river navigable to large ships. The riparian landowners all shared a special benefit of direct access to a newly navigable river, a benefit that was not shared by other non-waterfront properties in the vicinity. (United States v. River Rouge Co., supra, 269 U.S. 411, 415-416 [46 S.Ct. 144, 145-146].)
[728]III
With this statutory framework in mind, I now turn to the question in this case: In offsetting the landowner’s damages by the “amount of the benefit to the remainder” pursuant to section 1263.410, should the term “benefit” continue to be limited to only special benefits? The majority answers “no” to this question of statutory interpretation, asserting that the distinction between special and general benefits is impossible of consistent application and results in unfair overcompensation to landowners, and should be overruled. I disagree.
I see no need to upset this long-settled rule of California law. This court adopted the distinction between special and general benefits in 1902 in Beveridge v. Lewis, supra, 137 Cal. 619, and since then California courts have consistently adhered to it. (See, e.g., Pierpont Inn, Inc. v. State of California, supra, 70 Cal.2d 282, 296; People v. Thompson (1954) 43 Cal.2d 13, 28-29 [271 P.2d 507]; People ex rel. Dept. Pub. Wks. v. Simon Newman Co. (1974) 37 Cal.App.3d 398, 409 [112 Cal.Rptr. 298].)
Considerations of stare decisis require that this court not overrule its past precedent without substantial justification. “[I]t is not enough that a different rule might seem preferable to us now .... ‘ “It is, of course, a fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current justices.” ’ ” (People v. Cuevas (1995) 12 Cal.4th 252, 269 [48 Cal.Rptr.2d 135, 906 P.2d 1290].)
Moreover, we should be particularly hesitant to abandon the rule that only special benefits may be offset given the Legislature’s approval of this rule when it revised the eminent domain laws in 1975. As set forth above, the legislative history of section 1263.430 states that the section “codifies prior law.” Although the Legislature may not have prohibited the result the majority reaches today, given the statement in the legislative history that “[s]ection 1263.430 does not. . . impair the ability of the courts to continue to develop the law in this area” (Cal. Law Revision Com. com., 19A West’s Ann. Code Civ. Proc., supra, foll. § 1263.430, p. 82), it seems likely the Legislature presumed that the development of this area of the law would continue within a framework that preserved the distinction between special and general benefits, not that that framework would be abandoned.
There is no substantial justification for abandoning the distinction between special and general benefits. In resolving the statutory question of how broadly to interpret the term “benefit to the remainder” (§§ 1263.410, [729]subd. (b), 1263.430), one should keep in mind that it implements the just compensation provision of the California Constitution. The goal of that constitutional provision is to ensure that the landowner is compensated for the value of what has been taken or damaged by the government and does not “contribute more than his proper share to the public undertaking.” (Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 642 [220 P.2d 897].)
This purpose is furthered by deducting only special and not general benefits from the damages to the remainder, for that rule produces a fairer determination of just compensation in the circumstances of a partial taking. As our statutory scheme recognizes, when a portion of a larger parcel is taken, the landowner’s loss is not limited to the value of that portion. The landowner loses the synergistic value of the parcel—the extent to which its value as a whole exceeds the separate values of the portion taken and the remainder (because, as noted, a larger parcel offers more opportunities for development and use). The general benefits to the remainder, however, would have been the landowner’s even in the absence of any taking. It is unfair to the landowner who has suffered a severance of his or her property to reduce his or her compensation by offsetting general benefits to the remainder against the severance and other damages to the remainder. All properties in the locality of the project receive those general benefits, yet only the landowner whose property has been in part physically taken is made, by forgoing compensation for his or her other losses, to pay for those general benefits.
As we stated almost a century ago in Beveridge v. Lewis, supra, 137 Cal. at page 625: “The chance that land will increase in value as population increases and new facilities for transportation and new markets are created is an element of value quite generally taken into consideration in the purchase of land in estimating its present market value. This chance for gain is the property of the land-owner. If a part of his property is taken for the construction of the [project], he stands in reference to the other property not taken like similar property-owners in the neighborhood. His neighbors are not required to surrender this prospective enhancement of value in order to secure the increased facilities which the [project] will afford.”
The preeminent commentary on eminent domain law puts it similarly: “General benefits may not be used to offset damages because the owner whose land is taken would be placed in a worse position than his neighbor whose estate lies outside the path of the improvement and who shares in the increased value without any pecuniary loss. . . . The condemnee pays in [730]taxation for his share of general benefits, just as other members of the public, and therefore, is entitled to receive his fair portion of the general advantages brought about by a public improvement.” (3 Nichols on Eminent Domain, supra, § 8A.05, pp. 8A-57 to 8A-58.)
Nor is this a novel insight. A leading treatise on eminent domain law relied on by this court in Beveridge v. Lewis, supra, 137 Cal. 619, 624, reached a similar conclusion: “The distinction between general and special benefits seems to be well taken. General benefits consist of an increase in the value of land common to the community generally, arising from the supposed advantages which will accrue to the community by reason of the work or improvement in question. These advantages may never be realized, and if they are it is unjust that one person should be obliged to pay for them by a contribution of property while his neighbor whose property is not taken enjoys the same advantages without price. . . . [T]he community and each individual of the community is entitled to enjoy these advantages without otherwise paying for them.” (2 Lewis, Eminent Domain (2d ed. 1900) § 471, pp. 1021-1022, fn. omitted.) Another prominent treatise relied on by the Beveridge court expressed the same view: “But, in estimating either the injuries or the benefits, those which the owner sustains or receives in common with the community generally, and which are not peculiar to him and connected with his ownership, use, and enjoyment of the particular parcel of land, should be altogether excluded, as it would be unjust to compensate him for the one, or to charge him with the other, when no account is taken of such incidental benefits and injuries with other citizens who receive or feel them equally with himself, but whose lands do not chance to be taken.” (Cooley, Constitutional Limitations (2d ed. 1871) p. 566.) The logic of this argument and the fairness provided by the special benefit rule have not diminished over the past century.
This rule is the majority rule among the jurisdictions in the United States: “[I]t has been almost universally accepted that only special benefits may be deducted from damages to the remainder.” (3 Nichols on Eminent Domain, supra, § 8A.05, p. 8A-61; accord, Annot., Eminent Domain: Deduction of Benefits in Determining Compensation or Damages in Proceedings Involving Opening, Widening, or Otherwise Altering Highway, supra, 13 A.L.R.3d 1149, 1154.) The overwhelming acceptance of this rule over a long period of time is further evidence that it yields the fairest practical measure of compensation to a landowner in the case of a partial taking, and I would retain it as the rule for California.
IV
The majority takes the position, however, that the distinction between special and general benefits is uncertain and thus cannot be consistently [731]applied. In considering this assertion, it is important to recognize that calculating the amount of just compensation due when the government takes property is not an exact science. Determining fair market value, the lodestar for compensation calculations, is an exercise in hypothesis, not the discovery of a fact of nature. “[E]ven in the ordinary case, assessment of market value involves the use of assumptions, which make it unlikely that the appraisal will reflect true value with nicety.” (United States v. Miller (1943) 317 U.S. 369, 374 [63 S.Ct. 276, 280, 87 L.Ed. 336, 147 A.L.R. 55].) The appraisal of fair market value often is, “at best, a guess by informed persons.” (Id. at p. 375 [63 S.Ct. at p. 280]; see also Shampton, Statistical Evidence of Real Estate Valuation: Establishing Value Without Appraisers (1996) 21 S. Ill. U. L.J. 113, 114 [“[I]t is unfortunately the case that no one knows the true market value of a parcel of real estate until it actually sells. . . . [U . . . ffD Appraisals are ultimately products of opinion rather than pure calculation.”].) Each parcel of land is unique, and land values fluctuate constantly. In the case of a partial taking, the fact that the property taken is part of a larger parcel only further complicates the task of estimating changes in value to both the portion taken and the remainder.
In such circumstances, the role of the courts is not to search for a deceptive precision by abstracting the definition of “benefit” to the point where it becomes unnecessary to distinguish between special and general benefits. To do so would sacrifice the additional measure of fairness provided by the special benefit rule’s more individualized determination of the injury inflicted by a taking. It is both futile and misleading to attempt “to reduce the concept of ‘just compensation’ to a formula.” (United States v. Cors (1949) 337 U.S. 325, 332 [69 S.Ct. 1086, 1090, 93 L.Ed. 1392].) Instead, courts must engage in a search for “practical standards” and “endeavor to find working rules that will do substantial justice.” (Ibid.) However fact-bound and imprecise these rules may seem, their legitimacy should turn on their effectiveness in practice, not on their theoretical elegance. Of necessity, given the inherent uniqueness of every parcel of land and the individuality of its relationship to any particular project, the determination of what constitutes a special benefit will be a fact-intensive inquiry in which generalizations will be of only limited utility. The special benefit rule, while it does not turn every determination of whether a particular type of benefit counts as an offset into a rule of law that does not vary with the surrounding circumstances, has proven itself a workable rule that produces substantial justice.
In this sense, the special benefit rule is akin to the reasonable person standard of negligence liability. That standard, which asks whether the [732]defendant used the amount of care that a reasonable person would, given all of the circumstances, similarly yields conclusions that are “inherently situational” and that cannot be generalized into fixed rules of conduct that do not vary with the surrounding circumstances, for “the amount of care deemed reasonable in any particular case will vary.” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997 [35 Cal.Rptr.2d 685, 884 P.2d 142].) In that context, as here, the fairest rule is one that requires a sensitive, case-by-case inquiry that takes into account all of the surrounding circumstances.
Nor is the majority correct that the special benefit rule is too uncertain and inconsistent to guide adjudication. The rule’s long history belies that assertion. Courts both in California and elsewhere have been able to coherently apply the distinction between special and general benefits. (See, e.g., United States v. River Rouge Co., supra, 269 U.S. 411, 415-416 [46 S.Ct. 144, 145-146]; People ex rel. Dept. Pub. Wks. v. Simon Newman Co., supra, 37 Cal.App.3d 398, 409; People ex rel. Dept. Pub. Wks. v. Home Trust Investment Co. (1970) 8 Cal.App.3d 1022, 1028-1029 [87 Cal.Rptr. 722]; Sacramento etc. Drainage Dist. v. W. P. Roduner Cattle etc. Co. (1968) 268 Cal.App.2d 199, 204-207 [73 Cal.Rptr. 733]; People ex rel. Dept. Pub. Wks. v. Edgar (1963) 219 Cal.App.2d 381, 384-385 [32 Cal.Rptr. 892]; City of Hayward v. Unger (1961) 194 Cal.App.2d 516, 518-519 [15 Cal.Rptr. 301]; United States v. 2,477.79 Acres of Land, etc. (5th Cir. 1958) 259 F.2d 23, 28-29; Taub v. City of Deer Park (Tex. 1994) 882 S.W.2d 824, 827-828; State of La., Dept. of Highways v. Modica (La.Ct.App. 1987) 514 So.2d 22, 24; Caponi v. Carlson (Minn.Ct.App. 1986) 392 N.W.2d 591, 596; State Dept. of Trans. v. Montgomery Ward Dev. (1986) 79 Or.App. 457, 464-466 [719 P.2d 507]; State ex rel. State Hwy. Com’n, etc. v. Tate (Mo. 1980) 592 S.W.2d 777, 778-780; Gradison v. State (1973) 260 Ind. 688, 695-696 [300 N.E.2d 67]; New Jersey Turnpike Auth. v. Herrontown Woods (1976) 145 N.J.Super. 279, 285-286 [367 A.2d 893]; State v. Botluck (1964) 57 Del. 362, 371 [200 A.2d 424, 428].)
In an attempt to demonstrate that the special benefit rule breeds inconsistency, the majority asserts that the rule’s application in Pierpont Inn, Inc. v. State of California, supra, 70 Cal.2d 282, conflicts with its application in City of Hayward v. Unger, supra, 194 Cal.App.2d 516, and Los Angeles v. Marblehead Land Co., supra, 95 Cal.App. 602. These cases, however, present no inconsistency.
In City of Hayward v. Unger, supra, 194 Cal.App.2d 516, the condemnee’s store was on land abutting a street that was being widened; the trial court [733]found that the store’s exposure to an increased flow of traffic on the street in front of it was a special benefit not shared in general with all properties in the general vicinity. (City of Hayward v. Unger, supra, 194 Cal.App.2d 516, 518.) In Los Angeles v. Marblehead Land Co., supra, 95 Cal.App. 602, a new road was put through the condemnee’s parcel, creating two remainders which each fronted on the new road. The trial court held that the new frontage and access provided by the road were special benefits to the two remainders. (Id. at pp. 614-615.)
In Pierpont Inn, Inc. v. State of California, supra, 70 Cal.2d 282, the claimed special benefit was a new freeway interchange. The condemner’s expert in Pierpont Inn, however, admitted that the benefit of the interchange to the condemnee’s property was no different and no greater than the benefit received by “ 'all the properties in the vicinity,’ ” an admission that the benefit was general, not special. (Id. at pp. 295-296, italics added.) In light of that admission, there was no evidence of any special benefit, and for that reason it would have been impossible for a court to find that there was a special benefit. Thus, there is no actual inconsistency between the cases.
Moreover, the results in these three cases are consistent as well with the theory of special and general benefits. In most cases, merely being in the general vicinity of a freeway interchange, as in Pierpont Inn, Inc. v. State of California, supra, 70 Cal.2d 282, will not be a special benefit. The special benefits provided by a freeway interchange are usually extremely localized; often gas stations, fast-food restaurants, and other roadside service businesses cluster at the ramps leading on and off the freeway, but are absent only a few blocks further from the freeway. (See People ex rel. Dept. Pub. Wks. v. Giumarra Farms, Inc., supra, 22 Cal.App.3d 98, 106 [where remainder surrounded interchange of new freeway, limited portion of remainder adjacent to interchange received special benefit because of its commercial potential for roadside businesses].) By contrast, when a surface street project creates new or improved frontage or access for a directly abutting remainder, as occurred in City of Hayward v. Unger, supra, 194 Cal.App.2d 516, and Los Angeles v. Marblehead Land Co., supra, 95 Cal.App. 602, that frontage or access frequently will be a special benefit not shared by other properties in the vicinity whose frontage and access are unaffected by the project.
Thus, the majority has failed to demonstrate any instance in our case law in which the special benefit rule has led to inconsistent results.
Nor will it necessarily be easier to calculate general and special benefits together than it is to calculate special benefits alone. General benefits, being [734]more diffuse geographically, also often may be less capable of quantification in a definite amount. It is one thing to say that a freeway interchange may bring some general benefit to all the properties in the large area served by the surface streets connecting with the interchange; it is quite another thing to attempt to quantify that benefit. Because special benefits are more specific to one or a limited number of properties and usually arise from a more direct relationship between the property benefited and the project, they are in general more easily quantifiable. Additionally, as this court observed in Beveridge v. Lewis, supra, 137 Cal. 619, 624, general benefits may not immediately accrue, further increasing the difficulty of quantifying them. And if the majority is correct that the geographic scope of general benefits is completely arbitrary and indeterminate (maj. opn., ante, at p. 708), abandoning the distinction between special and general benefits will do nothing to solve the problem of determining the scope of the general benefits to be offset against the damages to the remainder. Thus, the simplification promised by the majority’s new rule is illusory.
Finally, the majority takes the position that it is fairer to deduct general benefits as well as special benefits. The majority asserts that the landowner may obtain compensation for damages from the project that are generally shared throughout the locality as well as special damages peculiar to the property severed, and therefore offsetting only special benefits results in an unfair overcompensation to landowners. The premise of the majority’s argument is erroneous, for the damages that a landowner may recover are more limited than the majority acknowledges. A landowner may not recover for damages to the remainder that are “general to all property owners in the neighborhood, and not special to [the landowner].” (City of Berkeley v. Von Adelung (1963) 214 Cal.App.2d 791, 793 [29 Cal.Rptr. 802]; accord, People v. Gianni (1933) 130 Cal.App. 584, 588-589 [20 P.2d 87].) The examples of compensable damages listed by this court in Pierpont Inn, Inc. v. State of California, supra, 70 Cal.2d 282, 295, and repeated by the majority are ones that typically will arise out of some direct and unique relationship (often the relationship of contiguity) between the remainder of the severed property and the project and will not be shared generally by all properties in the vicinity served by the project; deprivation of access, impairment of light and air, impairment of view, invasion of privacy. Because only special and not general damages are compensable, only special and not general benefits should be deductible.2
[735]V
I now turn to the application of the special benefit rule in this case. The trial court applied the special benefit rule and concluded that any benefit to the remainder arising from its proximity to the Douglas Street Station, almost one-third of a mile distant, was not a special benefit but a general benefit shared by all properties in the vicinity of the station. Accordingly, it offset no benefits against the damages to Continental’s remainder. The Court of Appeal upheld this determination. There is substantial evidence to support the trial court’s conclusion that the benefit of proximity to the station was general and not special. There are 565 other properties as close or closer to the Douglas Street Station as Continental’s remainder, and no evidence that the benefit of proximity to the remainder was in any way distinguishable from the same benefit shared by all properties within the vicinity of the station. Accordingly, I would affirm the judgment of the Court of Appeal to the extent that it affirms the trial court’s determination that the proximity of Continental’s remainder to the Douglas Street Station was not a special benefit to be offset against the damage to the remainder. t
Finally, I concur in that portion of the majority opinion which concludes, contrary to the Court of Appeal, that the trial court did not abuse its discretion in denying Continental its litigation costs.
Conclusion
When a parcel of property is severed by a government taking, any damages to the remainder are part of the injury the landowner suffers. To [736]refuse to compensate the landowner for those damages by offsetting against them the general benefits that all in the vicinity of the project receive unfairly forces the landowner to pay for benefits that others receive for free. Limiting offsets only to special benefits more equitably distributes among the entire community the benefits and burdens of the project: The landowner is not forced to pay for the general benefits that others receive without charge, the community pays for the damage that the project causes to the remainder, yet the landowner is denied the windfall of receiving both the special benefits to the remainder and the full value of the damages to the remainder.
For the reasons discussed above, the long-standing special benefit rule has proven itself practical and workable, as well as fair, and I would retain it. Accordingly, I would affirm that portion of the judgment of the Court of Appeal affirming the trial court’s decision that there were no benefits to offset the damages due Continental, and reverse that portion of the Court of Appeals’ judgment reversing the trial court’s order denying Continental its litigation costs.
Baxter, J., concurred.
All further statutory citations are to the Code of Civil Procedure.
Bacich v. Board of Control (1943) 23 Cal.2d 343 [144 P.2d 818], relied on by the majority, does not establish a contrary rule that landowners may recover for general damages to the remainder. At issue in Bacich was the question of compensation for damage to a property [735]right; at issue here is compensation for damages to a remainder that do not rise to the level of damage to a property right. In Bacich, the landowner’s property right to access over the abutting street was impaired, and this court held that he was entitled to compensation for the impairment of that property right. (Id. at pp. 345-346, 349-353.) There was no severance in that case, and no question, as here, of what damages to a remainder are compensable when no property right in the remainder has been taken or damaged.
Moreover, as the Bacich court made clear in a passage quoted by the majority, the damaging of a property right is necessarily a special damage peculiar to the owner of the right in question and not shared by the public in general: “If he has a property right and it has been impaired, the damage is necessarily peculiar to himself and is different in kind from that suffered by him as a member of the public or by the public generally, for his particular property right as a property owner and not as a member of the public has been damaged.” (Bacich v. Board of Control, supra, 23 Cal.2d 343, 349.) Finally, the Bacich court denied the landowner recovery for general damages the project caused that did not impair any property right (discontinuance of a street railway that formerly ran in front of his property, destruction of all other residences in the area). (Id. at pp. 355-356; see also Reardon v. San Francisco (1885) 66 Cal. 492, 506 [6 P. 317] [“damage” compensable under the California Constitution does not include “such damage as the owner of the property injured sustains in common with other abutters on the street or the general public, but only to that special injury which he receives over and above such common injury”].)