Opinion
Rehearing Granted Jan. 25, 1930.
COUNSEL
Fablus T. Finch, of San Francisco, and Barrett & McConnell, of Santa Rosa, for appellant.
Carl Barnard, of Santa Rosa. and E. J. Dole, of Petaluma, for respondent.
OPINION
JAMISON, Justice pro tem.
This action was brought by respondent to condemn a right of way for a county road over the land of appellant. The issues as to the value of the land taken, severance damage, and benefit to the land not taken, were submitted to a jury which returned a verdict in favor of appellant for the sum of $354 for the land taken and no damages for the severance from the land not taken. From the judgment rendered upon this verdict appellant has appealed. This appeal was brought upon a bill of exceptions. Appellant produced evidence tending to prove that the land taken was of the value of $1,500; that the damage to the land not taken by reason of the severance was from $25,000 to $45,360; and that no benefit was derived by the land not taken by virtue of the construction of the road. Appellant then offered in evidence the judgment roll in the action of appellant against respondent, theretofore tried and determined. It appears from this judgment roll that this last named action grew out of an agreement entered into between appellant and respondent in the year 1919, by the terms of which appellant agreed, in consideration of the sum of $250, to grant to respondent a right of way 40 feet wide over and across his land; respondent agreeing to construct a road on said right of way within a year from the date of said contract. Respondent did some work toward opening up a roadway on said right of way, but did not complete said road within the year, nor pay appellant the said $250, nor, as claimed by appellant, did respondent place the road where it had agreed to place it. It appears, however, that respondent continued to use the road so far as same was then constructed as a public road; that on August 15, 1922, respondent still desiring to secure the right of way for said road over appellant’s land, and respondent and appellant being unable to agree as to the amount of compensation that should be paid appellant for same, agreed to submit the matter to arbitration, and thereupon selected arbitrators to determine the said compensation. The arbitrators so selected placed the compensation that should be paid to appellant by respondent for said right of way at $500. Thereupon, appellant executed a deed to respondent for said right of way and placed same in escrow to be delivered to respondent upon the completion of said road and upon payment to him of said sum of $500. Thereafter, about the year 1924, respondent practically completed the construction of the road, but failed and neglected to pay appellant the said sum of $500. On October 25, 1925, appellant commenced an action against respondent, reciting in his complaint the aforesaid facts, and demanding that respondent be enjoined from the further use and occupation of said right of way, and for damages for injuries caused to appellant’s land by the construction of said road. Upon the trial of the issues involved in that action judgment was rendered in favor of appellant enjoining respondent from the further use of said road, and for damages in the sum of $100. This judgment was rendered July 21, 1927, and the present action was commenced on August 11, 1927. The strip of land sought to be condemned by the present action is the same strip over which the road was theretofore constructed. When the said judgment roll was offered in evidence, the attorney for appellant suggested to the count that it be considered as a record to the court, and not to the jury, for the reason that the said judgment roll consisted of long documents which would be difficult for the jury to follow, and that the court should, in its instructions to the jury, set forth the legal effect of said judgment roll, or such portions as might be applicable to the case; and to this suggestion the attorney for respondent assented. The record then recites that the judgment roll was thereupon admitted in evidence under the aforesaid circumstances and for said purposes. Respondent then produced testimony as to the value of the land taken, and also evidence as to the benefit conferred upon the property not taken by the construction of the road. The entire tract of land owned by appellant through which the right of way runs is twenty acres, and the amount within the said right of way is 1.4 acres.
Appellant does not question the sufficiency of the evidence to support the verdict. He maintains, however, that the court erred in admitting certain evidence, and in giving and refusing to give certain instructions hereinafter referred to, and that the verdict of the jury upon which the judgment is based is incomplete and insufficient to support the judgment.
It was stipulated by the parties to the present action that the right of way sought to be condemned in this action follows the lines of the road constructed by respondent under the agreement of 1919. And it was also stipulated that the value of the appellant’s land sought to be taken by the present action and damages to land not taken should be ascertained as of the date of the trial, towit, December 17, 1928. This last stipulation was unnecessary for the reason that section 1249 of the Code of Civil Procedure provides that where the issue is not tried within one year from the date of the commencement of the action, unless the delay was caused by the defendant, and in this case there is no evidence of any such delay, the compensation and damages shall be deemed to have accrued at the date of the trial. This action was commenced August 17, 1927, and was tried December 17, 1928.
Appellant contends that the court erred in permitting respondent, over his objection, to produce evidence tending to show the value of the benefit conferred upon the land not taken by reason of the construction of said road. He bases this contention upon the ground that respondent, at all times since it began the construction of said road, has been a trespasser on his said lands, and therefore cannot offset any damage to which appellant may be entitled by proof of benefits conferred upon the land arising by or through the trespass. He cites several cases in his effort to support this contention. The one upon which he appears mainly to rely is that of Pinney v. Borough of Winsted, 83 Conn. 411, 76 A. 994, 20 Ann. Cas. 923. This was a case where the town wrongfully entered upon Pinney’s land and constructed a street thereon without condemnation proceedings and without Pinney’s consent. Pinney brought an action against the town for damages arising from this trespass. The case was tried upon the theory that the taking was permanent. No proof was offered by the town tending to show that the construction of the street benefited the remaining land. Judgment was given the plaintiff for the value of his land that was taken, only. However, in that case the court held that even if benefits had been proven, they could not have been offset against plaintiff’s judgment, for the reason that the law is well established that a trespasser cannot, when compensation is sought for his trespass, be heard to say, in his defense, that he has benefited plaintiff by his wrongful act. These cases are not in point for the reason that there is no evidence produced or offered in this case now being considered, tending to prove that respondent was a trespasser in the construction of the road. Appellant states in his opening brief that the judgment roll in the former case was introduced in this case to establish facts which had previously been adjudicated and determined in the former case and had therefore become res adjudicata. Admitting that to be true, then in that event, so far as appellant’s claim that respondent was a trespasser in constructing said road is concerned, he has, by his own act, in introducing the judgment roll in evidence "hoisted himself by his own petard," for in that case we find that the court specifically found that respondent went upon appellant’s land and took possession of the said land, in the year 1919, by permission of appellant, and since that date has continuously used same as a public highway, by and with such permission. The objection to the introduction of this evidence was properly overruled.
Appellant also claims that the court erred in giving instruction No. 5, which was given by the court of its own motion. By this instruction the jury was told that the judgment roll in the former action was admitted in evidence upon the issue joined by the allegation contained in the complaint in the instant action, to the effect that respondent entered upon appellant’s land and constructed said road with his permission, and appellant’s denial thereof and assertion that an injunction was granted appellant in the former action because permission was not granted to construct the roadway exactly as it was constructed. That issue being thus joined on this allegation permitted the reception in evidence of said judgment roll, but that this did not alter the issue which the jury was to determine, namely, the market value of the land sought to be condemned, and the damage, if any, to the remaining land by severance of the land sought to be condemned from the remainder of the tract. Apparently, the object the court had in view in giving this instruction was to inform the jury, complying with appellant’s suggestion made at the time said judgment roll was admitted in evidence, of the extent to which the jury should give consideration to the said judgment roll in the determination of the issues before it. In the former trial no issues were involved regarding the value of the land occupied by the road, nor of damages to the land not taken by reason of severance therefrom of the land occupied by the road, nor of benefits conferred upon the land not taken by the construction of the road. It appears to have been an action to enjoin respondent from further occupying or using said road because it had failed to perform its agreements thereto relating, and for damages arising from such failure. By section 1908 of subdivision 2 of the Code of Civil Procedure, the effect of a judgment is conclusive in respect to the matters adjudicated, and by section 1911 of said Code, that only is deemed to have been adjudged in a former action which appears on its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. In order that a judgment in one action may constitute an estoppel against the parties thereto in a subsequent action, it must be made to appear, either upon the face of the record or by extrinsic evidence, that the identical questions involved in the issues to be tried were determined in the former action. Beronio v. Ventura County Lumber Co., 129 Cal. 232, 61 P. 958, 79 Am. St. Rep. 118; Agnifill v. Lagna (Cal. Sup.) 267 P. 705. We are unable to see wherein appellant was in any way injured by the giving of this instruction.
Appellant contends that the court erred in refusing to give his proposed instructions Nos. 1 and 2. Instruction No. 1 was properly refused: First, because it required the jury to assess the damages as of the date of the commencement of the action, instead as of the date of the trial of the action; and, secondly, because it bold the jury that respondent had constructed the road over appellant’s land without his consent, whereas, the only evidence upon that point was contained in the findings of the court in the former trial introduced by appellant himself, and those findings clearly and positively set forth that this road had been constructed by respondent by permission of appellant, and for this last reason, instruction No. 2 was properly refused.
Lastly, appellant contends that the judgment in the present action is void for the reason that the jury failed to find by its verdict the amount of the benefit which the land not taken will receive by the construction of the road. Section 1248, Code of Civil Procedure, provides that the court or jury must ascertain and assess, first, the value of the land taken; second, the damage which will accrue to the land not taken by reason of the severance, and third, the benefit, if any, which the construction of the road may be to the land not taken. The verdict of the jury was in the following words: "We, the jury in the above entitled action, render the following verdict: Question No. 1. What is the value of the strip of land of defendant W. W. De Winton, sought to be condemned by plaintiff? Answer, $354.00. Question No. 2. What is the damage, if any, to the balance of the land not sought to be condemned by reason of its severance from the land sought to be condemned by plaintiff? Answer. None." Appellant cites cases from other states, notably, Michigan and Colorado, to the effect that the aforesaid requirements are mandatory, and calls attention to the case of Butte County v. Boydston, 64 Cal. 110, 29 P. 511, which he claims supports this contention. In this latter case no assessment of the value of the land taken, nor damages to that not taken, nor benefits, by the improvement, to the land not taken, were assessed at all, nor payment, or tender of compensation made, and under those circumstances the court held that the owner could not be deprived of his land, and that any judgment rendered against him would be illegal and void, while at the same time the court said: "But the value of the land, the damage, if any, and the benefit, if any, must be separately assessed, in order that the compensation may be adjudged and paid." While section 1248 of the Code of Civil Procedure plainly requires that the value of the land taken, the damage to that not taken, and the benefit, if any, to the remaining land should be separately stated, yet in this case we find that the omission from the verdict of the value of the benefit to the remaining land by the construction of the road was mainly brought about by appellant himself.
Instruction No. 24, which was given to the jury at the request of appellant, reads in part as follows: "If you believe that Mr. De Winton’s property, on either or both sides of the proposed right of way, has sustained any special benefit by reason of the construction of this road, you may deduct the value of such benefits from the damages to be awarded to the land on each side of the right of way." Then again, when the jury returned into court with the aforesaid verdict, defendant made no objection to the fact that it failed to state the amount of the benefit, if any, to the remaining land. The case of Ft. Lyons Canal Co. v. Farnan, 48 Colo. 414, 109 P. 861, 862, was an action in eminent domain, where the jury failed to find the benefit to the remaining land, and no objection was made thereto at the time the verdict was returned. The court there said: "Had counsel for petitioner, as it was his duty to do, at the time the verdict was returned and before the jury was discharged, if of opinion that the same was not sufficiently certain, made that objection, the verdict doubtless would have been forthwith corrected to show, with greater particularity if that were necessary, exactly what the jury did in fact pass upon and find. * * * Besides it may well be held that petitioner waived his right to question it, either as to form or substance, by failing to urge objection thereto in apt time." If the verdict is insufficient in not covering the issues submitted, the jury may again be sent out. Section 619, Code Civ. Proc. Had appellant desired to have the verdict of the jury specify the amount of the benefit, if any, to the land not taken by the construction of the road, he should have so informed the court at the time the verdict was returned; otherwise, he waived this requirement. Benson v. Southern Pacific Co., 177 Cal. 777, 171 P. 948; Bloomberg v. Laventhal, 179 Cal. 616, 178 P. 496; Van Damme v. McGilvray Stone Co., 22 Cal.App. 191, 133 P. 995. He also waived it by his instruction No. 24 hereinbefore quoted. It is a fair presumption that following this instruction the jury, in assessing the damage to the land not taken, by reason of the severance, and in assessing the benefits accruing to the remaining land, found that the benefits equaled or exceeded the damage, and therefore could give appellant no damage for the severance.
From an examination of the entire case, including the evidence, we are of the opinion that the alleged errors of which complaint is made, did not result in a miscarriage of justice. Section 4 ½, art. 6, Const.
The judgment is affirmed.
We concur: FINCH, P. J.; PLUMMER, J.