Town of Emeryville v. Durkee

BRAY, J. Plaintif appeals from a judgment dismissing the action following the sustaining of a demurrer to the complaint and the granting of a motion to dismiss.

Question Presented

The principal question is whether the complaint states or could state a cause of action. The determinative question in this regard is the interpretation of the contract between plaintiff and defendant Department of Public Works.

[153]Record

The proceeding was brought to enjoin the construction by the State Department of Public Works of certain improvements to the Eastshore Highway in the county of Alameda. In the first count of the complaint the town of Emeryville alleges the official positions of the defendants and that on March 2, 1942, the State of California, acting through the Department of Public Works, and the town of Emeryville entered into a written contract pursuant to section 100.2, Streets and Highways Code (providing for the closing of city streets by agreement between the Department of Public Works and a city in connection with freeway construction).

A copy of the contract is annexed to the complaint. The contract provides, after referring to the fact that the California Highway Commission has declared a freeway within the city limits, route of which is described:

1. The city agrees and consents to the closing of city streets, relocation of city streets and other construction affecting city streets, all as shown on plan, Exhibit A thereto attached.

2. The state, in the construction of said freeway, will, at the state’s expense, “.make such changes affecting city streets in accordance with the said plan attached hereto or as the same may hereafter be modified by subsequent agreement between the parties hereto.”

3. The city will resume control and maintenance of the relocated or reconstructed city streets, on notice that the work provided for on such street has been completed, except as to any portion which is adopted by the state as part of the freeway.

4. The agreement may be modified at any time by the mutual consent of the parties.

Exhibit A shows (1) an overpass at the intersection of the Eastshore freeway and Powell Streets in Emeryville, (2) an overpass and certain traffic interchange facilities at the Ashby Avenue, Berkeley, intersection, and (3) a service road on the east side of the freeway. This service road does not connect with Powell Street but runs from a point a short distance northerly thereof to a connection in Berkeley with the proposed Ashby Avenue overpass. The only Emeryville street which approaches the freeway is Powell Street.