South San Francisco Unified School District v. Scopesi

SALSMAN, J. Defendants appeal from an order made by the trial court, striking out an exception in the description of real property contained in the summons, complaint, interlocutory decree, and final order of condemnation.

Defendants were the owners of a parcel of land consisting of 13.215 acres, which plaintiff condemned for use as a site for its high school. The complaint first correctly described the full 13.215 acres, but at the close of this description, words of exception were included in the description which had the effect of withdrawing approximately 3.5 acres from the 13.215 previously described. The description further recited that the property described was “the whole of an entire parcel.” Defendants’ answer admitted ownership of the property described, but made no reference to a claim for severance damage. Throughout the entire progress of the case, all parties assumed that the 13.215 acres had been accurately described, and no one paid any attention to the words of exception at the end of the description. In their testimony defendants described their property as containing 13 plus acres, and outlined their area on a map. They placed their own value on the entire 13.215 acres. Defendants’ expert appraisers described the entire parcel and at the conclusion of their testimony gave their expert opinion as to the value of the 13.215 acres. Plaintiff’s expert witnesses followed right along, and valued defendants’ 13.215-acre ownership without reference to the exception. The trial judge and jury viewed the property as a single parcel of 13.215 acres. The jury returned its verdict, finding that the value of the property described as parcel I was $116,350. After the entry of the interlocutory decree and final order of condemnation, plaintiff took possession of the entire 13.215 acres. Defendants took an appeal. A few minutes before the case was called for argument in the appellate court, counsel for defendants suggested to plaintiff’s counsel the possibility of error or confusion in the descrip[411]tion, but the matter was not called to the attention of the appellate court, and the argument proceeded as an appeal from a judgment making an award for defendants’ 13.215-acre ownership. Judgment was affirmed and in its opinion the appellate court referred to defendants’ land as a parcel containing 13.2 acres, more or less. (South San Francisco etc. School Dist. v. Scopesi, 187 Cal.App.2d 45 [9 Cal.Rptr. 459].) Defendants have withdrawn and received the entire award made by the jury. After issuance of the remittitur, plaintiff filed a motion in the trial court to strike out that portion of the description containing the words of exception previously referred to, and this appeal follows the granting of that motion.