People ex rel. Department of Public Works v. Eggert

[397]Opinion

CHRISTIAN, J. This is an eminent domain proceeding brought to acquire for freeway purposes a strip along one edge of a right-of-way which had been condemned some years previously when the highway was to be built to an expressway standard. The take in the present proceeding comprises 8/10 of an acre in area, seven temporary easements for drainage purposes, and the extinguishment of two 20-foot access openings leading to the existing expressway from the property.

During the trial the jury heard the testimony of one appraiser called by the condemnor and another called by the property owner. Maps and aerial photographs displaying the subject property and the planned highway improvements were received in evidence. The jury viewed the property under the court’s direction. The verdict returned by the jury determined that the value of the property taken was $1,425.89, and that there was neither severance damage nor any special benefit attributable to the condemnation or to the construction of the anticipated highway improvements.

The condemnee’s appraiser had given his opinion that there was severance damage in the amount of $24,300 by reason of the taking of the two 20-foot openings onto the highway which had remained to the property following the earlier condemnation. The state’s appraiser gave his opinion that there was no severance damage whatever. He based this opinion upon two factors; first, the two 20-foot openings (one of which leads to terrain which is too rough for convenient development of access roads) are too narrow for acceptance by county authorities having jurisdiction over any proposed residential subdivision; second, after completion of the proposed highway improvements, the property would have direct access to a frontage road giving safe and convenient access to the freeway by means of a bridge to be constructed by the state.

At the end of the direct examination of this witness, the condemnee moved to strike his testimony that there was no severance damage. The motion was based on the contention that under People ex rel. Dept. of Public Works v. Silveira (1965) 236 Cal.App.2d 604 [46 Cal.Rptr. 260], the state could not, after avoiding payment of severance damages in the prior taking by leaving points of access open to the property owner, avoid severance damages again in the second taking by claiming that access was already restricted because the highway authorities might not approve widening the access openings to meet minimum standards which would be required for county approval of a proposed subdivison. The court denied the motion to strike.