Summary
In San Jose v. Freyschlag, 56 Cal. 8, which was a proceeding to condemn land for a street, the complaint alleged that the defendants were in possession and were the only owners and claimants of the land, and the answer set up the same fact.
Summary of this case from City of Los Angeles v. PomeroyOpinion
Department One
Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Twentieth District Court, County of Santa Clara. Belden, J.
COUNSEL:
The question of dedication was not presented by the pleadings, and can never arise in a case like the present. ( Code Civ. Proc. §§ 1237- 9, 1241, subd. 2; Green v. Chandler , 54 Cal. 626.) The very action to condemn necessarily admits title in the defendant, and leaves the question of damages the only one to be debated. (The Peoria etc. v. Lawrie , 63 Ill. 264, 266; The Pres. etc. v. Givens , 17 id. 255, 257; Metropolitan v. Chicago, 18 Alb. L. J. 517; The Houston etc. v. Beckett , 26 Ind. 53, 58.)
D. M. Delmas, for Appellant.
D. W. Herrington, for Respondent.
This proceeding is the proper one to accept the gift, and subject the dedication to proper control. (Stone v. Brooks , 35 Cal. 501; 21 N.Y. 474; 23 id. 64-5; 16 Barb. 251-4.) The finding of dedication bythe jury was a probative fact within the issue of value involved in the pleadings. The value found by the jury was in gross; that found and awarded by the Court was this value, less the value of the use found to be dedicated to the public. It was proper to show that the estate taken was of nominal value.
JUDGES: Ross, J. McKinstry, J., and McKee, J., concurred.
OPINION
ROSS, Judge
The City of San Jose commenced this action in the late Twentieth Judicial District Court, to condemn certain property to public use as a street. The complaint contained all the allegations necessary to warrant a condemnation, and, among other things, alleged " that the lands through which the proposed street will run is claimed by defendants, and is in their possession," and " that the defendants are the only owners or claimants of the premises * * * sought to be condemned as, and for an extension of (said) street." The answer of the defendant Freyschlag, who is the appellant here, avers that he is the owner of the property sought to be condemned, and, in effect, asks that he be allowed as damages, first, the value of the land to be taken, and, secondly, the damage to his remaining land. The jury, in answer to special issues submitted to them, found the value of Freyschlag's land necessary to be taken to be $ 250, the damage to his remaining land $ 50, and that the proposed improvement would not benefit his remaining land at all.
The jury further found as a fact, that Freyschlag had dedicated to the public use, for the purpose of a public street, the tract sought to be condemned by the proceeding. Upon these findings the Court below entered judgment, condemning to the use of the city, for the purposes stated, the required land of appellant, and awarded him one dime therefor; and further decreed, that upon the payment to him of that sum the city should have the right to enter upon and take possession of the land so condemned and paid for, and use the same as and for a public street.
The judgment is erroneous. The appellant was entitled to the value of the property to be taken, as well as the damage resulting to the land not taken, by reason of its severance from the tract sought to be condemned. ( Code Civ. Proc. § 1248 .) The aggregate of these sums the jury found to be three hundred dollars.
The finding concerning dedication cannot be considered. It is not only not within the issues made by the pleadings, but is in conflict with the allegations of the plaintiff's complaint. Indeed, had the plaintiff alleged that the land sought to be condemned had been already dedicated by the owner to the use of the public for a street, it would have alleged itself out of Court; for in such case it would have shown the existence by virtue of the dedication, of the only right that could be acquired under our statute, by the condemnation proceedings, namely, an easement in the property for street purposes. ( Code Civ. Proc. § 1239.)
The judgment and order are reversed, and the cause remanded to the Court below, with directions to enter judgment on the verdict in accordance with this opinion.