People ex rel. Department of Public Works v. Williams

Opinion

DRAPER, P. J. Both parties appeal. Each limits his appeal to issues concerning interest upon the award.

We find no merit whatever in the state’s contention that failure to file a claim with the state bars recovery of any prejudgment interest. Interest is but an incident of the award made to an owner in a condemnation action. The state, and not the owner, initiated this proceeding in [982]eminent domain, thus seeking a fixing of the award and, obviously, undertaking to pay it when fixed. To require filing of a claim would be to reverse the roles of the parties, and to assumd that the action originated in a demand by the owner.

The decision relied upon by the state (County of San Luis Obispo v. Ranchita Cattle Co., 16 Cal.App.3d 383 [94 Cal.Rptr. 73]) has no application here. There the owner asserted that the condemner had exceeded the use permitted under a limited right of entry agreement. The asserted trespass occurred before the filing of the action in eminent domain. Obviously, damages for such trespass were independent of the condemnation proceeding, which was not begun until after the trespass occurred. It seems clear that this claim was independent of the condemnation action, was in tort, required a formal claim to the state, and, in any event, was outside the issues in the eminent domain proceeding.

Here, in contrast, the right of entry agreement was broad. It permitted the state to enter upon the land, not to survey, but for the purpose of “constructing or improving a public highway and accomplishing all necessary incidents thereto.” It specifically contemplated eminent domain proceedings and provided that they should be commenced within 60 days of demand therefor by the owner. Here no claim is made that the state exceeded the scope of the entry agreed to by the owner. Although the eminent domain proceeding followed the agreement, the agreement clearly contemplated such delay, and it thus cannot be relied upon to establish a claim by the owner distinct from that proceeding.

This agreement provided that “interest shall be paid on the same basis as if an Order for Possession were taken, with interest commencing as of February 1, 1965.” (Some five days after the date of the agreement.) This and the provision that February 1, 1965, be the valuation date in the contemplated eminent domain proceeding make clear that the parties treated the entry permitted by the owner as the equivalent of a taking under an order for immediate possession, and gave the agreed entry the same effect.