People v. Barnes

CRAIL, J. This is an appeal by the defendants M. B. and Gladys Boston from a judgment taking from them by condemnation proceedings a strip of land 19.82 feet by 88 feet for highway purposes and awarding severance damages for injuries to the remainder of defendants’ lot. Defendants’ fundamental contention is based upon the following language which was used in the case of East Bay Municipal Utility District v. City of Lodi, 120 Cal. App. 740 [8 Pac. (2d) 532] : “The law seems to be quite uniform that in eminent domain proceedings the damages must be assessed once and for all, and must include all the damages that might be inflicted by the condemning party.” The defendants insist upon emphasizing the word “might” in the last part of the sentence. Following this thesis, the defendants first contend that the court erred in refusing to give to the jury an instruction to the effect that the damages should be based upon the most injurious use to which the property taken might be lawfully put.

It is important to note that in the instant case the property is being condemned for highway purposes and at the time of the trial the improvement had been already put in. The Lodi case was a proceeding to condemn the riparian rights of the defendant in the waters of a stream. The damages were predicated upon the plaintiff’s oral statements that it would not actually use all the water in the stream by the use of its dam, but that it proposed to continue to discharge above the lands of the defendant a specified quantity of water flowing in the river which was sufficient for defendant’s uses. However, there was nothing in the judgment which obligated it so to do and it consistently refused to so obligate itself. It was with this state of facts before it that the court used the language first quoted herein and upon which the defendants rely. A perusal of the Lodi case makes clear that the part of the said sentence which should be emphasized is the words “once and for all” and that the word “reasonably” should be inserted before the word “inflicted”. That such was the intention of the court in that case is indicated by the following quotations included in the opinion upon which that sentence was based, “ . . . damages once and for all time [187]based upon the most injurious use of the land reasonably possible to which the property might lawfully be put”, and “The general rule in condemnation proceedings is that all damages, present or prospective, that are the natural or reasonable incident of the improvement to be made or work to be constructed . . . must be assessed. ’ ’ That such is the proper interpretation is also made clear by the following summation of the matter contained in the case: ‘ ‘ The rules which we have just stated are set forth in 20 C. J., beginning on page 765, where unaccepted promises are held insufficient as a diminution of damages (citing a number of cases), and then it is further said: ‘The probability that, the appropriator will not exercise or the fact that there is no present intention of exercising to the full extent the rights acquired, should not be considered in reduction of damages where there is nothing to prevent a full exercise of such rights, since the presumption is that the appropriator will exercise his rights and use and enjoy the property taken to the full extent.’ (See, also, the case of Sternes v. Sutter-Butte Canal Co., 61 Cal. App. 747 [216 Pac. 66], where it was held that damages must be assessed once and for all.) ”