Opinion
G1NSBURG, J.
This is an appeal from a judgment condemning the fee title to certain real property. Plaintiffs are the City of Los Angeles and its Department of Water and Power, and defendants are the owners of 640 acres of agricultural land situate outside the territorial limits of plaintiff city, being in the County of Kern.
In 1950 plaintiffs brought an action in the Superior Court of Kern County to obtain a permanent easement across defendants’ property for
the purpose of constructing and maintaining electrical transmission lines. Subsequently, the then owners of the property conveyed to plaintiffs an easement over a strip of property sometimes called “Parcel 104.” This strip is 250 feet wide, runs diagonally across the 640-acre parcel, and contains 17.34 acres. The easement so obtained contains broad grants of rights in connection with the construction, maintenance and operation of one or more electrical transmission lines.
In 1952, plaintiffs constructed an electrical transmission line across the subject property within the easement right of way. They now are constructing an additional line within this area; this additional line was contemplated at the time they obtained the right of way, and there is no question but that they have adequate space within the 250-foot easement and the right to construct it under the terms of their existing easement. In fact, plaintiffs admit that by virtue of the existing easement they not only can continue their present use, but also they may accomplish any future use now within their contemplation.
This action was commenced in 1967 for the purpose of acquiring a fee simple estate in the identical property subject to the easement. No additional property nor right in any other portion of defendants’ property was sought. A written “Stipulation Limiting Issues and Setting Just Compensation” was
executed by the parties prior to trial wherein they stipulated that . . [t]he only issue remaining between plaintiffs and defendants is public use and necessity for the taking of the above parcel [the land subject to the easement] and the
fee interest
therein.” (Italics added.)
The trial court awarded judgment to the plaintiffs, finding that “[t]he public interest and necessity require interests in said parcel 104 in addition to those owned and enjoyed under the easement . . . ,” and “[t]he public interest and necessity require the taking by plaintiffs of an estate
in fee simple
in the real property described in the Complaint as Parcel 104.”
The issues raised on this appeal are as follows:
(1) Was the finding of the trial court of necessity for the taking of the fee sustained by the evidence?
(2) Do plaintiffs have the absolute right to condemn the fee estate on property outside their territorial limits on which they already hold a permanent easement that includes all present and contemplated uses?
Plaintiffs contend that evidence supports the finding that the taking is for a public use and is necessary. They further contend that a resolution of the Board of Water and Power Commissioners and the ordinance of the City Council of the City of Los Angeles determining that public interest and necessity require the taking of a fee estate in Parcel 104 is conclusive upon the issue of the
quantum
of the estate to be taken.
We first consider whether the plaintiffs have shown that the public interest and necessity require the taking of the property, i.e., the taking of the fee in the real property subject to this easement.
Public use and necessity are controlled by Code of Civil Procedure section 1241, which provides, in part, as follows:
“Before property can be taken,
it must appear: 1. That the use to which it is to be applied is a use authorized by law; 2. That the taking is necessary to such use; provided, when the board of ... a public utility district ... or the legislative body of a . . . city . . . shall, by resolution or ordinance, adopted by vote of two-thirds of all its members, have found and determined that the public interest and necessity require the acquisition, construction or completion, by such . . . city ... of any proposed public utility, or any public
improvement, and
that the property described, in such resolution or ordinance is necessary therefor,
such resolution or ordinance shall be conclusive evidence; (a) of the public necessity of such proposed public utility or public improvement; (b)
that suck property is necessary therefor,
and (c) that such proposed public utility or public improvement is planned or located in the manner which will be most compatible with the greatest public good, and the least private injury;
provided, that said resolution or ordinance shall not be such conclusive evidence in the case of the taking by any
. . .
city ... of property located outside of the territorial limits thereof.”
(Italics added.)
In
City of Carlsbad
v.
Wight,
221 Cal.App.2d 756, 761 [34 Cal.Rptr. 820], the court said: “. . . section 1241, subdivision 2, of the Code of Civil Procedure limits the power of the condemning agency when the proposed taking is outside its territorial limits. . . .
“It is thus clear that a determination of the condemner as to public need, necessity and route for, or site of, a proposed public improvement within its boundaries is a legislative, not a judicial, matter
(People
v.
Chevalier,
52 Cal.2d 299, 305 [340 P.2d 598]); but when a city seeks to condemn land without its corporate limits, it devolves upon the courts to determine whether the taking of the particular land is necessary for the use
(Harden
v.
Superior Court,
44 Cal.2d 630 [284 P.2d 9]).”
It is apparent that the Legislature, in differentiating between property inside and outside the territorial limits of the condemning agency, recognized the differences in the postures of both the property owner and the condemning agency in these contrasting situations. Where the property is inside the territorial limits, the ministerial officers and legislative body of the condemning agency and the property owners and taxpayers should have full knowledge of conditions, locations, and the public good involved in the proposed improvement. Furthermore, the legislative body and, by derivation, their ministerial functionaries, are accountable to those who are property owners and, also, to those who are taxpayers within the territorial limits through the elective process. But where the property sought to be taken is outside and distant from these territorial limits, neither such knowledge nor such accountability may be present. Thus, the Legislature has specifically provided that the courts shall pass upon such a taking (see Code Commissioners’ Note to Code Civ. Proc., § 1241, Deering’s Ann.
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Opinion
G1NSBURG, J.
This is an appeal from a judgment condemning the fee title to certain real property. Plaintiffs are the City of Los Angeles and its Department of Water and Power, and defendants are the owners of 640 acres of agricultural land situate outside the territorial limits of plaintiff city, being in the County of Kern.
In 1950 plaintiffs brought an action in the Superior Court of Kern County to obtain a permanent easement across defendants’ property for
the purpose of constructing and maintaining electrical transmission lines. Subsequently, the then owners of the property conveyed to plaintiffs an easement over a strip of property sometimes called “Parcel 104.” This strip is 250 feet wide, runs diagonally across the 640-acre parcel, and contains 17.34 acres. The easement so obtained contains broad grants of rights in connection with the construction, maintenance and operation of one or more electrical transmission lines.
In 1952, plaintiffs constructed an electrical transmission line across the subject property within the easement right of way. They now are constructing an additional line within this area; this additional line was contemplated at the time they obtained the right of way, and there is no question but that they have adequate space within the 250-foot easement and the right to construct it under the terms of their existing easement. In fact, plaintiffs admit that by virtue of the existing easement they not only can continue their present use, but also they may accomplish any future use now within their contemplation.
This action was commenced in 1967 for the purpose of acquiring a fee simple estate in the identical property subject to the easement. No additional property nor right in any other portion of defendants’ property was sought. A written “Stipulation Limiting Issues and Setting Just Compensation” was
executed by the parties prior to trial wherein they stipulated that . . [t]he only issue remaining between plaintiffs and defendants is public use and necessity for the taking of the above parcel [the land subject to the easement] and the
fee interest
therein.” (Italics added.)
The trial court awarded judgment to the plaintiffs, finding that “[t]he public interest and necessity require interests in said parcel 104 in addition to those owned and enjoyed under the easement . . . ,” and “[t]he public interest and necessity require the taking by plaintiffs of an estate
in fee simple
in the real property described in the Complaint as Parcel 104.”
The issues raised on this appeal are as follows:
(1) Was the finding of the trial court of necessity for the taking of the fee sustained by the evidence?
(2) Do plaintiffs have the absolute right to condemn the fee estate on property outside their territorial limits on which they already hold a permanent easement that includes all present and contemplated uses?
Plaintiffs contend that evidence supports the finding that the taking is for a public use and is necessary. They further contend that a resolution of the Board of Water and Power Commissioners and the ordinance of the City Council of the City of Los Angeles determining that public interest and necessity require the taking of a fee estate in Parcel 104 is conclusive upon the issue of the
quantum
of the estate to be taken.
We first consider whether the plaintiffs have shown that the public interest and necessity require the taking of the property, i.e., the taking of the fee in the real property subject to this easement.
Public use and necessity are controlled by Code of Civil Procedure section 1241, which provides, in part, as follows:
“Before property can be taken,
it must appear: 1. That the use to which it is to be applied is a use authorized by law; 2. That the taking is necessary to such use; provided, when the board of ... a public utility district ... or the legislative body of a . . . city . . . shall, by resolution or ordinance, adopted by vote of two-thirds of all its members, have found and determined that the public interest and necessity require the acquisition, construction or completion, by such . . . city ... of any proposed public utility, or any public
improvement, and
that the property described, in such resolution or ordinance is necessary therefor,
such resolution or ordinance shall be conclusive evidence; (a) of the public necessity of such proposed public utility or public improvement; (b)
that suck property is necessary therefor,
and (c) that such proposed public utility or public improvement is planned or located in the manner which will be most compatible with the greatest public good, and the least private injury;
provided, that said resolution or ordinance shall not be such conclusive evidence in the case of the taking by any
. . .
city ... of property located outside of the territorial limits thereof.”
(Italics added.)
In
City of Carlsbad
v.
Wight,
221 Cal.App.2d 756, 761 [34 Cal.Rptr. 820], the court said: “. . . section 1241, subdivision 2, of the Code of Civil Procedure limits the power of the condemning agency when the proposed taking is outside its territorial limits. . . .
“It is thus clear that a determination of the condemner as to public need, necessity and route for, or site of, a proposed public improvement within its boundaries is a legislative, not a judicial, matter
(People
v.
Chevalier,
52 Cal.2d 299, 305 [340 P.2d 598]); but when a city seeks to condemn land without its corporate limits, it devolves upon the courts to determine whether the taking of the particular land is necessary for the use
(Harden
v.
Superior Court,
44 Cal.2d 630 [284 P.2d 9]).”
It is apparent that the Legislature, in differentiating between property inside and outside the territorial limits of the condemning agency, recognized the differences in the postures of both the property owner and the condemning agency in these contrasting situations. Where the property is inside the territorial limits, the ministerial officers and legislative body of the condemning agency and the property owners and taxpayers should have full knowledge of conditions, locations, and the public good involved in the proposed improvement. Furthermore, the legislative body and, by derivation, their ministerial functionaries, are accountable to those who are property owners and, also, to those who are taxpayers within the territorial limits through the elective process. But where the property sought to be taken is outside and distant from these territorial limits, neither such knowledge nor such accountability may be present. Thus, the Legislature has specifically provided that the courts shall pass upon such a taking (see Code Commissioners’ Note to Code Civ. Proc., § 1241, Deering’s Ann. Codes).
We must thus look to the evidence adduced at the trial to determine whether the plaintiffs have met the burden of proving that the “public
interest and necessity require the acquisition” of the fee of the property in question, within the meaning and intent of Code of Civil Procedure section 1241, subdivision 2,
supra.
In so doing, we apply the limited power of appellate review, and to that end determine only whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trial court
(Crawford
v.
Southern Pac. Co.,
3 Cal.2d 427, 429 [45 P.2d 183]; 3 Witkin, Cal. Procedure (1954) Appeal, § 84, p. 2245, and cases cited therein).
Plaintiffs point to the ordinance and resolution as
prima facie
evidence of
necessity
under -Code of Civil Procedure section 1241, relying upon
People
ex rel.
Dept. Pub. Wks.
v.
Lagiss,
223 Cal.App.2d 23, 36 [35 Cal.Rptr. 554]. The
Lagiss
case holds such a resolution to be
prima facie
evidence that the taking is, in fact, for a
public use
under Code of Civil Procedure section 1238, subdivision 3; but, where the property is outside the condemning agency’s territorial limits, we know of no case which holds it is evidence of
necessity
under Code of Civil Procedure section 1241, subdivision 2, or any statute so providing. Section 1241, subdivision 2, states that such a resolution shall not be
conclusive
evidence that the taking is necessary. Under the general rule that language purporting to define the powers of municipal corporations must be strictly construed (see
Harden
v.
Superior Court,
44 Cal.2d 630, 638-639 [284 P.2d 9], and cases cited therein), we hold that neither the resolution of the board of a public utility district nor the ordinance of the legislative body of a city is
prima facie
evidence of necessity under Code of Civil Procedure section 1241, subdivision 2, where the property is outside the condemning agency’s territorial limits.
Plaintiffs’ only evidence, other than the ordinance and resolution, was the testimony of one York, an engineer employed by the Los Angeles Department of Water and Power. York testified that one electrical transmission right of way was located on the property, that a second was then in the process of being constructed, that this second line was contemplated at the time the easement was acquired in 1951, and “that’s why the right of way [is of] the width of 250 feet. . . .” He admitted that 250 feet would be excessive for only one line, and that the first line had been placed 75 feet from the easterly edge of the right of way in 1952 in contemplation of the second line now being constructed. He further testified that no additional use of the property is contemplated.
Perhaps the most compelling evidence of lack of necessity is plaintiffs’ answers to certain interrogatories, wherein they admit that all uses of the
property present or contemplated are permissible under the existing easement.
Over defendants’ objection, certain testimony was given concerning departmental “policy,” which counsel for plaintiffs described as “. . . the meat of the coconut . . . [tjhis is what the whole lawsuit is about.” This “policy” was stated to be to obtain the fee to transmission line rights of way. Although the policy of a legislative body may be admissible evidence of a fact in certain situations, to hold policy to be admissible in evidence as a reason or a fact of itself upon which to find necessity for taking in a case such as this, would be to denigrate the plain language and intent of Code of Civil Procedure section 1241, subdivision 2; it would permit, through indirection, a legislative determination instead of a judicial determination. (See
City of Carlsbad
v.
Wight, supra,
221 Cal.App.2d 756, 761.) It may be presumed thát “policy” is an im
pelting force for the taking in any case, but it does not, of itself, create nor is it evidence of necessity.
The evidence of the defendants, on the other hand, shows that this land is now used for grazing, and that plaintiffs’ easement and their use have created no conflicts or problems. It was uncontradicted that there has been no trouble or even inconvenience to either party resultant from the combined uses. It is uncontradicted from the evidence that to divide this 640-acre farming unit by the diagonal strip of land would result in a totally unnecessary and unwarranted diminution of its economic potential; further, it would be a waste of the utility users and taxpayers’ funds to purchase it in that they would gain no rights which they do not already have.
We, therefore, hold that plaintiffs have failed to meet the burden of showing that the proposed taking of the fee is necessary for the public use, and that the judgment is not supported by the evidence.
Plaintiffs’ next contention is that the resolution and ordinance of plaintiffs are conclusive evidence for the taking of the fee estate whether the property is located outside their territorial limits or not. They cite Code of Civil Procedure section 1239, subdivision 4, as giving the condemning agency the power to determine, as a legislative decision, the issue of the
quantum
of the estate to be taken. They cite
City of Santa
Barbara
v.
Cloer,
216 Cal.App.2d 127 [30 Cal.Rptr. 743] as authority for such an interpretation.
Even assuming plaintiffs’ interpretation is correct, still, the basic finding that public use and necessity required the taking of any property under Code of Civil Procedure section 1241, subdivision 2, must necessarily be made. Here the evidence does not support a finding that the plaintiffs need anything more than they already have; so the question of quantum of the estate to be taken is moot.
The judgment is reversed.
Gargano, Acting P. J., and Coakley, J.,
concurred.
A petition for a rehearing was denied February 23, 1971, and respondents’ petition for a hearing by the Supreme Court was denied March 26, 1971. Burke, J., was of the opinion that the petition should be granted.