Opinion
Rehearing Denied April 26, 1967.
For Opinion on Hearing, see 63 Cal.Rptr. 1, 432 P.2d 697 Richards, Watson & Hemmerling, Los Angeles, for defendants, cross-complainants and appellants.
Leonard B. Hankins, Long Beach, and Baird & Holly, Los Angeles, for defendants, cross-defendants and respondents.
OPINION
WHELAN, Associate Justice.
This is an appeal by Arthur E. Hemmerling and Hulda M. Hemmerling (Hemmerings) from a judgment apportioning, under section 1246.1, Code of Civil Procedure, an award in a condemnation proceeding for a parcel of land in which Hemmerlings, Tomlev, Inc., Lillev, Inc., General Pipe and Supply Company (the last three are all referred to herein as General) and Holly Wade Davidson (Davidson) owned interests.
The parcel taken was described as parcel 4 in the complaint in condemnation filed February 26, 1964.
The parcel in question (parcel 4) was rectangular in shape, containing approximately 1,000 square feet, owned by Hemmerlings, General and Davidson in undivided interests, subject to the effect of a certain written agreement made by the owners or their predecessors in interest.
That agreement, dated February 5, 1926, was entered into by the owners of nine separately owned parcels of land, other than the parcel in question. Hemmerlings were the owners of one of those parcels of 21 acres, which has since been reduced to 17.12 acres; the other signatories to the agreement, owning a total of approximately 103 acres, since reduced to 53.54 acres, have been succeeded by General and Davidson.
The parcel condemned was, under the agreement, to be used as the site of a water well to be dug and a pumping plant to be installed for the purpose of pumping The agreement contained these provisions:
'* * * each of said parties shall have and own such interest in such joint property as the acreage owned by him and described herein shall bear to the total acreage to be irrigated from said waterplant and such interest shall be an appurtenance to his land herein described * * *
'It is further understood and agreed that the cement pipeline with valves laid in the ground leading from said pumping plant to a main line to the north and thence in a westerly direction * * * shall be considered one branch of the main line. Another branch shall begin at the pumping plant and extend along the street line in a westerly direction * * * and this main line shall be considered the property of the company for the common use of all of said parties.
'And while running water through said line to his respective lands or for the purpose of inspecting said line or making repairs thereto, each of said parties shall have, and is hereby given, the right to go along said pipeline over and across the lands of the other said parties without any interference whatsoever.'
The agreement was amended under date of January 25, 1939. The provisions which are the only ones that may be relevant to this appeal are the following:
'Said system * * * shall be operated only for the delivery of water for the uses above specified on the lands of the parties hereto; the respective interests and rights in said system are hereby made appurtenant to the hereinafter described lands of the parties hereto, and shall not be separated therefrom, in whole or in part, wighout the consent in writing of the owner of the land affected * * *
'* * * any party may elect not to take his proportionate quantity of water for any period, in which event that party's proportionate quantity shall be distributed to the remaining parties in the proportion that their respective interests in the system bear to the total interests of the parties taking water, and the actual costs of operating the system during that period shall be prorated in like manner among such remaining parties * * *
'Said system described in the original agreement may be replaced in whole or in part, or moved in whole or in part to any other location on any of the lands of any of the parties hereto with the written consent of the parties owning the majority interest and of the owner of the land to which the same is moved.'
On or about May 22, 1962, Davidson served on the other co-owners of the parcel a notice that she elected not to take water from the system until further written notice. She stated:
'The purpose of this Notice is to relieve the undersigned from all liability to pay her proportionate part of the cost of constructing, altering, improving, repairing, maintaining, operating and/or supervising said pumping plant system.'
On May 24, 1962, General served a similarly worded notice asserting the same purpose in giving the notice.
PLEADINGS AND ISSUES, AND FINDINGS OF THE TRIAL COURT
The Hemmerlings, General and Davidson filed answers which, in essence, admitted the allegations of the complaint and placed in issue the questions of valuation and apportionment of the award among the various defendants claiming an interest in the 'The use to which Parcel 4 is put is that of a site of a water drill and pump, which water is used to irrigate other lands owned by this defendant. Said water drill and pump were erected on the parcel sought to be condemned pursuant to an agreement dated February 5, 1926 between this defendant and other persons. The purpose of entering into such an agreement was to form a voluntary association to obtain water from the well and pump to irrigate the agricultural lands of the various signators to the agreement. As of the date of the filing of the complaint herein, this defendant was the only remaining user of said water for that purpose and this defendant contends, therefore, that he is entitled to the sole proceeds of any award in condemnation.'
Arthur E. Hemmerling also filed a cross-complaint for declaratory relief against various defendants, claiming an interest in the well site, including General and Davidson. General and Davidson filed answers to said cross-complaint.
The issues stated in the pre-trial order based upon a joint pre-trial statement are the following:
'1. The fair market value of Parcel 4.
'2. Whether the taking of Parcel 4 constitutes a total taking or a partial taking.
'3. If the taking of Parcel 4 constitutes a partial taking, the description of the larger parcel from which said Parcel 4 is taken.
'4. If the taking of Parcel 4 constitutes a partial taking, the severance damages, if any, to the larger parcel from which said Parcel 4 is taken.
'5. If the taking of Parcel 4 constitutes a partial taking, the special benefits, if any, to the larger parcel from which said Parcel 4 is taken.'
Before trial on the issue of the amount to be paid by the condemnor, a stipulation was entered into by all parties 'that the total compensation to be paid for the taking of parcel 4, and all interest therein, is the sum of $9,450'; the question of apportionment was to be tried separately after the judgment of condemnation; findings were waived in the trial of the first phase. The judgment in condemnation adjudged that the payment into court of $9,450:
'* * * shall be in full payment for the real property and interests in real property so taken in fee simple absolute, together with any and all improvements thereon pertaining to the realty, and for all damages of every kind and nature suffered by said defendants by reason of the taking of said real property and interests in real property * * *'
Thereafter the issues as to apportionment were tried. After hearing evidence, the court made findings that Hemmerlings, General and Davidson were entitled to share in the award on a pro-rata basis in the proportion that the separate holding of each bore to the total of their combined separate holdings.
There was a finding that:
'It is not true that the cross-complainant, Arthur E.Hemmerling is the only person whose interest is affected or damaged by the action to condemn the subject property.'
The amount awarded to each was found to be 'just compensation for their interest in said property including all improvements therein together with damages suffered by result of taking the said real property * * *'
EVIDENCE AT THE APPORTIONMENT TRIAL
In addition to the various documents referred to, there was testimony that since the 1926 agreement Hemmerlings have continually taken water, pursuant to the agreement, for irrigation of their land; for many years during or shortly after the year 1926, the various larger parcels owned by persons other than the Hemmerlings were Davidson and General acquired one or more of the parcels surrounding the well site from one or more of the original parties to the agreement; the land of both General and Davidson was being used for industrial purposes at the time the well site was taken; since some time prior to the valuation date, and continuously thereafter, the General larger parcel has been improved into an industrial use with industrial buildings and facilities. Continuously, since commencement of its industrial use, General has not been using water from the well site on its larger parcel for any purpose whatsoever; since about February 1962 Davidson has not used water from the well site on her larger parcel for any purpose whatsoever.
There was no testimony by any witness at the trial to the effect that the industrial uses being made of the General and Davidson larger parcels were not permanent or to the effect that there was a likelihood, probability or possibility of (1) any use of water from the well site after the valuation date for irrigation or other purposes on their larger parcels, or (2) a return of the Davidson and General parcels to any non-industrial use or any use which would cause either of them to take water from the well site for irrigation purposes.
Hemmerling, the only valuation witness called by any party at the hearing on apportionment, testified that the value of the pumping plant and well site was $450, and that the value of the water rights and interest in the well as an operating well supplying irrigation water for his land was $9,000 on the valuation date. He also testified that it would be substantially more expensive for him to procure water for irrigation of the citrus and avocado grove from sources other than the well site, and that in fact he did, after the condemning agency took possession of the well site, procure water for irrigation purposes from another source at a greater price to himself. On cross-examination, Hemmerling testified that the increased cost of water made farming less profitable.
ISSUES ON APPEAL
The basic issues raised on appeal are these:
Was the question of severance damages an issue in the trial court?
If the matter of severance damages was an issue, was it error for the court to fail to find thereon?
If the matter of severance damages was an issue, were there present the elements necessary to sustain an award of severance damages?
Did Hemmerlings have a separate interest in parcel 4 distinct from their undivided interest in the fee?
If Hemmerlings had such separate interest, was it error for the court to fail to make a finding to that effect and to place a valuation thereon?
If Hemmerlings had such separate interest or were entitled to severance damages, did they establish the value of that interest or amount of such damage by their evidence?
WAS THE QUESTION OF SEVERANCE DAMAGES AN ISSUE?
Yes. Hemmerlings' answer did not set out the claim in a manner to be immune to demurrer. However, the pre-trial order shows that the question of severance damages was intended to be presented as to the owners of all three interests.
The stipulation of the parties was not limited to the value of the property taken but to just compensation for the taking. The judgment was more explicit; the award covered not only the fee with all interests therein, but also 'all damages of every kind and nature.'
No findings were made in the valuation phase of the proceeding which left unanswered the question whether there were severance or other special damages in addition to the value of the fee. WAS IT ERROR NOT TO FIND ON THE ISSUE OF SEVERANCE DAMAGES?
Yes; but only if the elements were present to support an award of severance damages.
Where there is an issue as to severance damages, the failure to make a finding thereon is error. (People v. Ocean Shore R., Inc., 22 Cal.App.2d 657, 659-660, 72 P.2d 167.) This would seem to be so even if the evidence as to the amount of such damage was lacking. However, the error would be non-prejudicial if it might be said as a matter of law that Hemmerlings' evidence on the subject showed they suffered no such damage, or if it could be said as a matter of law that their damage was no greater than that suffered by each of the other two interests by reason of the severance.
WERE THE NECESSARY ELEMENTS PRESENT TO SUPPORT AN AWARD OF SEVERANCE DAMAGES?
Section 1248(2), Code of Civil Procedure, provides for the assessment of severance damages if the property sought to be condemned constitutes only a part of a larger parcel.
Apart from proof of actual damage, the following elements must be shown to exist to support such an award: To qualify the parcel taken as only a part of a larger parcel, (a) there must be a unity of use between the parcel taken and the remainder of the larger parcel of which it is claimed to be a part (City of Stockton v. Marengo, 137 Cal.App. 760, 767, 31 P.2d 467; City of Menlo Park v. Artino, 151 Cal.App.2d 261, 311 P.2d 135); (b) there must be a contiguity between the parcel taken and the remaining parcel; and (c) there must be unity of ownership.
UNITY OF USE
The requirement of unity of use between the parcel condemned and Hemmerlings' separately owned parcel clearly is established. There was no such unity of use at the time of taking between parcel 4 and the parcels owned by General and Davidson. See People v. Ocean Shore Railroad, 32 Cal.2d 406, at page 424, 196 P.2d 570, at page 582, 6 A.L.R.2d 1179, where it is said:
'* * * while an existing unity of use may warrant an award, none can be allowed where, as here, the property is not contiguous, and there is merely a possible or prospective, and not a presently existing, unity of use.'
UNITY OF OWNERSHIP
We discuss hereafter the reasons for our conclusion that Hemmerlings had a separately owned interest, to wit, an easement in parcel 4. But such easement was not the parcel condemned within the meaning of section 1248(2), Code of Civil Procedure. The parcel condemned was the whole bundle of rights that made up the fee simple absolute in parcel 4. In fee simple of the parcel condemned, therefore, they had only an undivided interest.
It is sometimes said that the damage caused the dominant tenement by extinguishment of an easement as the result of condemnation of a servient tenement is severance damage, as in the loss of a right of direct access to a street. (County of Santa Clara v. Curtner, 245 A.C.A. 781, 795, 54 Cal.Rptr. 257.)
We consider as undecided in California the question whether the sole owner of a parcel not taken in a condemnation proceeding can claim damages for severance of that parcel from the parcel sought to be condemned in which he owns only an undivided interest.
It is mentioned in People v. Ocean Shore R., Inc., supra, 22 Cal.App.2d 657, 658, 72 P.2d 167, 168, that defendant Henshaw:
'* * * as an individual and as trustee for others, was the owner of two of the parcels involved in the first of the From the quoted language, it is not clear whether ownership of the property on both sides was also held partly by the trustee. If it was solely owned by Henshaw as an individual, the problem confronting us was not discussed.
In County of Santa Clara v. Curtner, 245 A.C.A. 781, 54 Cal.Rptr. 257, unity of title was held to exist in two contiguous parcels where the condemnee was the equitable owner of one and the owner in fee of the other. Equitable ownership existed because the condemnee had exercised an option to purchase the one parcel.
But the existence of an unexercised option on a parcel which lies between two other parcels owned by the optionee does not serve to provide contiguity between the two parcels owned by the optionee or to satisfy the requirement of unity of ownership of the property under option with either of the other parcels. (East Bay Mun. Utility Dist. v. Kieffer, 99 Cal.App. 240, 278 P. 476, 279 P. 178.)
In People ex rel. Dept. of Public Works v. City of Los Angeles, 220 Cal.App.2d 345, 362, 33 Cal.Rptr. 797, 806, consideration was given to the claim of the City of Burbank for severance damages to a park owned by Burbank caused by the taking of adjoining land used in connection with the park, which Burbank had had a contractual right to use for a period of four years after the taking. In rejecting the claim, the court said:
'Whatever the nature of Burbank's rights in the Los Angeles land during the remaining four-year term of the agreement, they did not constitute such an ownershipi of the land that it could be said that a unity of title existed in Burbank in both the Los Angeles land and its own separately owned land so that it was entitled to receive compensation for the alleged permanent depreciation in the value of its own lands not otherwise involved in the taking.'
The following rule is stated in Corpus Juris Secundum:
'* * * it is not a requisite for unity of ownership to have the same quantity or quality of interest or estate in all parts of the tract.' (29A C.J.S. Eminent Domain § 140, p. 595.)
In support thereof are cited State ex rel. La Prade v. Carrow, 57 Ariz. 429, 114 P.2d 891; Barnes v. North Carolina State Highway Commission, 250 N.C. 378, 109 S.E.2d 219.
American Jurisprudence adds to the authorities in support of the last mentioned proposition Chicago & E.R. Co. v. Dresel, 110 Ill. 89, and Jonas v. State, 19 Wis.2d 638, 121 N.W.2d 235.
However, American Jurisprudence (27 Am.Jur.2d § 320, p. 143) recognizes that there is a conflict in the authorities, stating:
'There seems to be a conflict in the cases, however, as to whether it is requisite for unity of ownership that the condemnee have the same quantity or quality of 'estate or interest' in all parts of the two tracts claimed as a single unit, some cases apparently taking the view that he must, others taking a contrary view, and a number holding that severance damages may be allowed where the owner of one tract has a certain right or interest, although short of ownership, in the other tract. Reflecting this difference of opinion, it has been held that the requisite unity of ownership for severance damages does not exist where the owner of a condemned tract has an interest as a cotenant or tenant by the entirety in the damaged tract, or where the condemned tract is owned by cotenants or tenants by the entirety, one of whom owns the damaged tract, although there is contrary authority.'
It is not unreasonable to adopt the rule stated in the quoted language from Corpus Juris Secundum if applied to the owner of a substantial fee interest in the parcel condemned, as in the instant case. CONTIGUITY
The situation, then was of two parcels united in use: one used for horticulture, the necessary water for which was obtained from the other; that water was carried along an easement over an intervening parcel or parcels. The easement, therefore, was essential to the unified use of the two parcels. The physical boundaries of the easement were not described, but its existence is clearly set out in the 1926 agreement.
Whether such an easement essential to the unified use of parcels having no common boundary is a sufficient connection between them to satisfy the requirement of contiguity we consider to be an open question in California. In Atchison, etc., Ry. Co. v. Southern Pac. Co., 13 Cal.App.2d 505, 57 P.2d 575, it was held that the existence of a spur track between the parcel sought to be condemned and a second parcel did not serve to make the two parcels contiguous. The court went on to say, at page 520, 57 P.2d at page 583: '[N]or does that fact make the two parcels susceptible of a common use.' The element of common use is present, however, in the instant case.
Disapproved on other grounds in County of Los Angeles v. Faus, 48 Cal.2d 672, 680, 312 P.2d 680.
In People v. Emerson, 13 Cal.App.2d 673, 675, 57 P.2d 955, this court reversed an award of severance damages based upon a claimed loss of use of water on property not owned by the condemnee, saying:
'Defendants urge an easement existed through the cattle crossing and suggest a lease on it and the spring. The evidence is insufficient to support an easement and only vaguely hints at leases. If such easement or leases exist they should be proved by competent evidence.'
In City of Oakland v. Pacific Coast Lumber, etc., Co., 171 Cal. 392, 153 P. 705, there was a unity of use between two separated parcels and it was urged that they were united by an easement. The Supreme Court rejected the claim, saying at page 396, 153 P. at page 706:
'This right of way, however, was a reservation in favor of the Oakland Water Front Company and not of the defendant, which in fact never used it, hauling its lumber for mill and other purposes, as has been said, away from its lumberyard over Grove or Castro Streets.'
In People ex rel. Dept. of Public Works v. Dickinson, 230 Cal.App.2d 932, at page 936, 41 Cal.Rptr. 427, at page 430, the court said:
'The two parcels are not to be considered one merely because of unity of use and such physical connection as is provided by the private roadway. There is neither unity of ownership nor contiguity of the parcels. Severance damages are not allowable.'
Earlier the court had said, at page 936, 41 Cal.Rptr. at page 430:
'We observe, too, that there is no description of the quality of the easement. It may have been an easement in gross, which is a mere personal interest in real estate of another. (Balestra v. Button, 54 Cal.App.2d 192, 197, 128 P.2d 816.) If it were such and were not attached to a dominant tenement, it may have been terminable under any number of conditions. The case was tried on a stipulated statement of facts in which the easement is described simply as 'an easement of way known as Anderson Avenue, a nonpublic road. Said easement on record in the Humboldt County Recorder's Office is vested in Glen C. Dickinson.' We do not mean to say that if the easement had been shown to be appurtenant, conjunction would have been effected; we merely point out that its quality was not stated.'
It cannot be said, therefore, that Dickinson has settled the question. In People v. Bowers, 226 Cal.App.2d 463, 38 Cal.Rptr. 238, the condemnee had sold a strip of land so as to separate physically two parcels, one of which later was condemned. In denying a claim for damages to the other parcel, the court said, at page 466, 38 Cal.Rptr. at page 241:
'* * * appellants' contention that Litch impliedly reserved an easement to cross over the lumber company's property is defeated by the rule that such an easement rests upon a preexisting use by the grantor and 'must be both apparent and continuous, or obvious and permanent * * *.''
In San Benito Co. v. Copper Mtn. Min. Co., 7 Cal.App.2d 82, 45 P.2d 428, the decision was based upon the fact that the defendant had not shown a right to use of water, the deprivation of which he claimed as damages and which flowed over land sought to be condemned that was not owned by the defendant.
In People v. Ocean Shore Railroad, supra, 32 Cal.2d 406, 196 P.2d 570, 6 A.L.R.2d 1179, the property condemned was owned in fee by defendant and had once been used as a railroad right-of-way. Other land that had similarly been used, owned by defendant, was separated from the land condemned by property known as Sharp Park. The Supreme Court affirmed a trial court ruling that the property south of Sharp Park did not suffer severance damages. In so ruling, the Supreme Court said, at page 414, 196 P.2d at page 576:
'* * * the part of the right of way condemned by the state was located north of Sharp Park, and it is not disputed that defendant would be entitled to severance damages if the roadbed were contiguous, as would be the case if defendant had a fee title or an existing easement to a right of way through the park.'
Corpus Juris Secundum states this rule:
'* * * although the several tracts do not actually adjoin, they may be regarded as one if the owner has a connecting right of way over the intervening lands.' (29A C.J.S. Eminent Domain § 140, p. 594.)
In support thereof are cited: Union Terminal R. Co. v. Peet Bros. Mfg. Co., 58 Kan. 197, 48 P. 860; Mississippi State Highway Commission v. Dodson, 207 Miss. 229, 42 So.2d 179; McLennan County v. Stanford (Tex.Civ.App.), 350 S.W.2d 208.
We conclude that severance damages may be allowed to a parcel that has no common boundary with the parcel condemned, but with which it is united in use and with which it is connected by an appurtenant easement that is essential to such unified use.
THE SEPARATELY OWNED EASEMENTS IN PARCEL 4
Hemmerlings contend that each of the three cotenants in parcel 4 owned separately an easement in the commonly owned land which was appurtenant to the separately owned land of each cotenant, citing Porto v. Vosti, 136 Cal.App.2d 395, 288 P.2d 618, in support of that claim.
The answers of General and Davidson are that the taking was of the fee simple absolute and not of any easement; and that since each of the three cotenants owned such an easement they must all have been of equal value.
Neither of those answers disposes of the problem. While the state took the fee simple absolute, the separate interests therein must still be recognized.
The values of the separately owned easements need not necessarily have been equal at the time of the taking, under the recognized method for valuation of an easement.
In determining the effect of an agreement similar to the 1926 agreement here involved, the court said, in Porto v. Vosti, supra, 136 Cal.App.2d 395, 397, 288 P.2d 618, 619:
'* * * by the agreements of the parties something more than an ownership of the two wells in cotenancy was created. Impressed upon the wells so owned in common was an easement appurtenant 'It is clear that an agreement such as these, giving the right to use a portion of the water produced by a well upon described real property, particularly where, as here, it is expressly stated that 'the covenants hereof are expressly made for the benefit of the lands,' creates an easement. Lanthier v. Wharton, 4 Cal.2d 354, 49 P.2d 278; 26 Cal.Jur., Waters, sec. 416, p. 211; Civ.Code, § 801, subd. 5. It is no obstacle to the existence of such easement that the owner of the dominant tenement is also the owner of an undivided interest in the servient tenement. Cheda v. Bodkin, 173 Cal. 7, 16-17, 158 P. 1025; Smith v. Roath, 238 Ill. 247, 87 N.E. 414, [128 Am.St.Rep. 123]; Blanchard v. Maxson, 84 Conn. 429, 80 A. 206; Dority v. Dunning, 78 Me. 381, 6 A. 6.'
The easements in the jointly owned land to take water for the benefit of the respective separately owned parcels were appurtenant to such parcels. Those easements were distinct from any easement across any of the separately owned parcels for the transportation of the water.
A further test of the existence of such easement in the jointly owned property, appurtenant to the separately owned property, is posed by the question: If one of the cotenants in parcel 4 had sold his interest therein to one person and his separately owned parcel to a second person, would that second person's property continue to have the easement in parcel 4? Obviously the answer must be in the affirmative.
The value of an easement appurtenant is capable of assessment, being measured by the difference in value of the dominant tenement before the taking of the easement and after the taking. (In re West Tenth Street, Borough of Brooklyn, 267 N.Y. 212, 196 N.E. 30, 98 A.L.R. 634.)
Different rules apply where the easement is not appurtenant, as for a public highway (see United States v. Los Angeles County, 9 Cir., 163 F.2d 124); or where the easement is coextensive with the property taken and excludes the possibility of use by the fee owner (see City of San Gabriel v. Pacific Elec. Ry. Co., 129 Cal.App. 460, 18 P.2d 996).
If Hemmerlings suffered compensable damage apart from compensation for the value of their interest in the fee, that damage ia measured by the possible diminution in value of their separately owned property by reason of the destruction of the appurtenant easement in parcel 4; or it is the severance damage measured by the difference in market value of the remaining separately owned parcel before and after the taking. (People ex rel. Dept. of Public Works v. Hayward Bldg. Materials Co., 213 Cal.App.2d 457, 465, 28 Cal.Rptr. 782; People ex rel Dept. Pub. Wks. v. Silveira, 236 Cal.App.2d 604, 617, 48 Cal.Rptr. 260; County of Santa Clara v. Curtner, supra, 245 A.C.A. 781, 795, 54 Cal.Rptr. 257.) Competent evidence of severance damages in a lump sum also is admissible. (People v. Ricciardi, 23 Cal.2d 390, 401, 144 P.2d 799.)
On the question of the difference in the fair market value before and after the taking, the cost of replacing improvements on the remaining parcel ('cost of Cure') may be considered if such cost is no greater than the decrease in market value of the property if it were to be left as it stood after the taking. (County of Santa Clara v. Curtner, supra, 245 A.C.A. 781, 795, 54 Cal.Rptr. 257; People ex rel. Dept. of Public Works v. Hayward Bldg. Materials Co., supra, 213 Cal.App.2d 457, 465-466, 28 Cal.Rptr. 782.)
Evidence of the profitability of his operations as an orchardist would not be Thus the measure of Hemmerlings' damage would be the same whether it be considered severance damages or the value of the appurtenant easement in parcel 4. It should be noted also that the loss of his use of the easement for transportation of water across the land separating his orchard from parcel 4 is not to be considered a separate item of damage.
With regard to the two other co-owners of parcel 4, they are not entitled to severance damages because at the time of taking there was no unity of use between their separately owned property and the parcel condemned. However, each of them, like Hemmerlings, owned an appurtenant easement, despite its nonuser at the time of taking.
Whether the appurtenant easements in fact added value to the separately owned property of any of the co-owners does not appear from the record. It is conceivable that market value of Hemmerlings' property for non-agricultural purposes might be greater than when used for the growing of fruit with water from parcel 4.
Hemmerling's testimony as to the value of his water rights seems to have been upon the theory that his rights in the well as such were greater than those of his co-owners, rather than to have been a lump sum assessment of the damage suffered by his separately owned property under either of the theories discussed.
The judgment is reversed and the cause remanded with directions to determine whether any severance damage was suffered and the amount thereof, and what, if any, value the appurtenant easements had. So far as Hemmerlings are concerned, their damage, if any, would be limited to that determined on only one of the two theories.
GERALD BROWN, P. J., and COUGHLIN, J., concur.