Long Beach City High School District v. Stewart

185 P.2d 585, 30 Cal. 2d 763, 173 A.L.R. 249, 1947 Cal. LEXIS 203
CourtCalifornia Supreme Court
DecidedOctober 24, 1947
DocketL. A. 19452
StatusPublished
Cited by92 cases

This text of 185 P.2d 585 (Long Beach City High School District v. Stewart) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Long Beach City High School District v. Stewart, 185 P.2d 585, 30 Cal. 2d 763, 173 A.L.R. 249, 1947 Cal. LEXIS 203 (Cal. 1947).

Opinions

SPENCE, J.

In this proceeding to condemn land for a new junior high school, defendants Irwin Stewart, William Henry Stewart and M. Pearl Coyle have appealed. After a careful review of the entire record we have concluded that the trial court committed no reversible error, and that the judgment should therefore be affirmed. Irwin Stewart is the only defendant on whose behalf points have been presented in appellants’ brief and on oral argument. Therefore, for convenience, he will hereinafter be referred to as appellant.

The property condemned consists of five parcels, totaling 18.60 acres, on the outskirts of the city of Long Beach. Appel[765]*765lant, at the time proceedings were instituted, owned Parcel No. 1, consisting of 15.28 acres. The judgment appealed from awards him $20,000 for his property. The entire property was acquired by him in 1905 for the sum of $150 per acre, and he has resided on Parcel No. 1 and has used such parcel for farming operations continuously since that time. In 1906 he built thereon a frame dwelling house, a barn, storeroom, and shed. Later a garage was added and a small repair shop, operated by appellant’s son, was housed behind the dwelling house in a structure measuring 28 feet by 32 feet. These improvements are of comparatively small value, the highest estimate made by any witness being $2,500, and that was by appellant’s own expert. Parcels Nos. 2, 3 and 4 are of lot size. Parcel No. 2 is improved with a stucco dwelling owned by defendants Luman P. Rose and Isabell M. Rose, husband and wife. Parcels Nos. 3 and 4 are vacant lots, approximately 75 feet by 155 feet, which appellant had conveyed to his son, defendant William Henry Stewart, and to his daughter, defendant M. Pearl Coyle. Parcel No. 5 is a six-foot strip of land.

Since appellant’s acquisition of the property in 1905, the surrounding tracts on three sides of the entire rectangular strip, including the long north and south sides, have been developed as residential subdivisions. On the fourth or west side is located the Union Pacific Railroad right of way. There has been no industrial development in the vicinity and the only business development, consisting of stores and a beer parlor, is distant 800 feet to one-half mile from appellant’s parcel. In 1941, this property, together with the surrounding area, was zoned into a single family residence district. Thereafter the shop of appellant’s son was operated under a “non-conforming use permit.”

The issues as to public necessity and suitability of the property for the junior high school were determined in respondent’s favor by the court sitting without a jury. Thereafter a jury awarded appellant $20,000 as compensation for the taking of his property, and it is this latter portion of the judgment that he attacks upon the present appeal.

Appellant contends: (1) the jury was erroneously instructed to limit their consideration of value to the use to which the property might be put under existing zoning ordinances ; (2) the testimony of appellant’s expert witness was erroneously limited to statements as to value of the land for [766]*766residential purposes; and (3) the court erred in refusing to permit appellant to testify as to the reasons for his opinion as to value.

Appellant first claims that there was error in the instructions given to the jury. He says: “We can state briefly that the error was in the introduction of the idea of ‘availability’ as a basis for values.” In other words, appellant claims that in fixing the market value of the land, “adaptability” for any use should be considered by the jury, but that “availability” should not. Such is obviously not the law, for the jury should consider whether the land is or is not available for particular uses under existing zoning ordinances, as such “availability” does affect market value.

Los Angeles City H. S. Dist. v. Hyatt, 79 Cal.App. 270 [249 P. 221], was an action in eminent domain for the acquisition of property for school purposes. Upon appeal, it was insisted that the consideration of zoning restrictions to which the property in question was subject was “an unjust handicap to appellant in fixing the award of damages.” In denying the validity of the objection, the court stated on page 272: “There might be many considerations which if removed would enhance the value of real property, but when they exist they should be observed. It was the duty of the trial court to consider all conditions having any bearing upon valuations.”

City of Beverly Hills v. Anger, 127 Cal.App. 223 [15 P. 2d 867], was an action by plaintiff city to acquire land for public park purposes. Upon appeal, the chief attack was directed toward the admission in evidence of a zoning ordinance which restricted the use of the lots to construction of one-family dwelling houses. It was asserted that “the city may not take advantage in condemnation proceedings of the decreased valuation of lots which is caused by the enacting of a zoning ordinance, but upon the contrary, that the market value should be estimated on the basis of any reasonable use to which the land may. be adapted.” (P. 226.) To the contrary, the court stated on pages 227 and 228 that the “enacting of a zoning ordinance which is adopted by a city in good faith and which actually does affect the market value of real property is nevertheless competent evidence in behalf of the city in a subsequent suit for condemnation of the property for public use.”

[767]*767The same principle was enunciated in City of Beverly Hills v. Anger, 110 Cal.App. 626 [294 P. 476], where it was further indicated at pages 629 and 630 that if there is testimony that demonstrates with “plausibility” a prospective use for purposes other than that to which the land is restricted, the jury might be instructed that if it finds in accordance with defendants’ evidence, then “in view of the supposed changes of conditions, the city council in the exercise of its discretion might modify, as indicated, its zoning ordinance, and that in estimating the market value the jury might consider this possible change of the ordinance and the reasonable influence on market value, of such possibility.”

In Central Pacific Railroad Co. v. Pearson, 35 Cal. 247, this court gave consideration to the matter of “availability” when it was insisted that the value of certain land was enhanced by reason of potential wharf privileges. The court said at page 262: “The testimony in relation to the value of wharf privileges on the shore of the Sacramento river, where the tide ebbs and flows, given for the purpose of enhancing the value of some of the land sought to be appropriated, was also improperly received, for the obvious reason that the party claiming the compensation had no wharf franchise. The mere fact that the party might at some future time obtain from the State a grant of a wharf franchise if allowed to remain the owner of the land, is altogether too remote and speculative to be taken into consideration. The question for the Commissioners to ascertain and settle was the present value of the land in its then condition, and not what it would be worth if something more should be annexed to it at some future time. (Gould v. The Hudson River Railroad Company, 6 N.Y. 522.) ”

The following appears from the opinion of the Supreme Court of Washington in Bellingham Bay & B. C. R. Co. v. Strand, 4 Wash. 311 [30 P.

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Bluebook (online)
185 P.2d 585, 30 Cal. 2d 763, 173 A.L.R. 249, 1947 Cal. LEXIS 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-beach-city-high-school-district-v-stewart-cal-1947.