Imperial Irrigation District v. Hamerson

BARNARD, P. J. This is an action to condemn an 80-foot strip of land, desired for the installation of a drainage ditch, extending across a 15-acre parcel owned by the defendants. This strip, containing 2.31 acres, is near the north end of defendants’ land, leaving another strip, 35 feet wide and containing about one acre, between it and the north property line. For some 25 years a service ditch about 10 feet wide had [905]existed along this 35-foot strip, having been used by the plaintiff without any record right of way.

By their answer and cross-complaint the defendants claimed damage through the destruction of an underground concrete drainage pipe which existed throughout the length of the 80-foot strip in question. They also claimed that the proposed ditch would lower the value of the main body of their land. They did not, however, ask for the value of the 80-foot strip which was to be taken, nor for severance damage with respect to the 35-foot strip thus cut off.

Hearing the case without a jury, the court found for the plaintiff with respect to the necessity for taking the 80-foot strip. It was further found that the defendants are the owners of 1,250 feet of concrete drain pipe along the 80-foot strip which will be destroyed; that the defendants will be damaged in the sum of $812.50, the value of this drain; that the value of defendants’ lands is $300 per acre, and they are entitled to $700 for the 2.31 acres condemned; that the defendants are the owners of the 35-foot strip to the north, which will be rendered valueless to them; that the value of this one acre is $300 for which the defendants are entitled to judgment; and that the remainder of defendants’ land, to the south of the strip taken, will be benefited by the proposed improvement in the sum of $630. Judgment was entered giving the defendants damages in the sum of $1,182.50, but making no mention .of condemnation and awarding no rights or benefits to the plaintiff. Prom this judgment the plaintiff has appealed.

It is first contended that the court erred in allowing $300 damages for the 35-foot strip to the north of the 80-foot strip and which will be severed from the main body of the respondents’ land by the construction of the proposed ditch. It is argued that this strip had no value to the respondents since it was already occupied by a service canal which had been in existence for 25 years, and that any claims on the part of the respondents with respect thereto were barred by the statute of limitations (citing Kafka v. Bozio, 191 Cal. 746 [218 P. 753, 29 A.L.R. 833]).