Housing Authority v. Forbes

Fifteen proceedings in eminent domain were brought to condemn residential property in West Oakland for a low-rent housing project known as Peralta Vil

On this appeal the adequacy of the awards is not questioned. The principal points raised are (1) that the plaintiff failed to offer any proof of public use or necessity, and (2) that the instructions were erroneous and prejudicial.

The legislation under which these condemnations were carried on was enacted in 1938 and is known as the “Housing Authorities Law” (Stats. Ex. Sess. 1938, Ch. 4, p. 9; Deering’s 1939 Supp., Act 3483). Its “legislative background” is reviewed at length in The Housing Authority v. Dockweiler, 14 Cal. (2d) 437 [ 94 P. (2d) 794 ], which case held the law constitutional (see, Riggin v. Dockweiler, 15 Cal. (2d) 651 [ 104 P. (2d) 367 ]; Housing Authority v. Superior Court, 18 Cal. (2d) 336 [ 115 P. (2d) 468 ] ; Kleiber v. City and County of San Francisco, 18 Cal. (2d) 718 [ 117 P. (2d) 657 ] and further held the purposes of the act to be public uses amd purposes.

Section 1241, Code of Civil Procedure, provides that “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; ...”

The first inquiry is whether this housing project is a public use. It is settled that in the first instance “it is for the legislature to determine whether the use for which property may be taken is a public one.” (10 Cal. Jur., p. 290; City of Pasadena v. Stimson, 91 Cal. 238 , 253 [ 27 Pac. 604 ]; Kern County etc. Dist. v. McDonald, 180 Cal. 7 , 13 [ 179 Pac. 180 ]; Kleiber v. San Francisco, supra. The Legislature spoke directly upon this subject at the extra session of 1938 in chapter 3 (Stats. Ex. Sess. 1938, p. 6) when it amended section 1238, Code of Civil Procedure, by adding subdivision 21, extending the right of eminent domain “... to provide dwellings, apart

In Housing Authority v. Dockweiler, supra, at page 449, the Supreme Court recognized that among the questions there presented “the one of fundamental importance, "and upon the determination of which several of the lesser and incidental issues will turn, is whether slum clearance and public housing projects for low-income families are public uses and purposes for which public money may be expended and private property acquired.” After remarking that the federal and state statutes are premised upon the expressly declared policy that these are “public uses and purposes” the court continues: “While such a declaration of policy by the legislative branch of the government is not necessarily binding or conclusive upon the courts, it is entitled to great weight and it is not the duty or prerogative of the courts to interfere with such legislative finding unless it clearly appears to be erroneous and without reasonable foundation. [Citing cases.]”

Under the act, however, certain steps must be taken before private property can be taken by eminent domain.

The record shows a resolution of the Oakland City Council based upon a report of the city planning commission finding, in substantially the statutory language of section 4, supra, that “(1) Insanitary and unsafe inhabited dwelling accommodations exist in the City of Oakland; (2) There is a shortage of safe or sanitary dwelling accommodations in the City of Oakland available to persons of low income at rentals they can afford;” and declaring that “there is need for a Housing Authority” therein. A copy of this resolution was attached to the complaint. This was followed in evidence by a certificate of the appointment of the five commissioners, and by notice to the mayor that the resolution had been adopted by the council declaring the need for a housing authority. There was then offered documentary evidence showing that the five commissioners had qualified. Then there was offered in evidence a resolution approving the final plans and specifications for this project (“Cal. 3-1”) which had been prepared by the board of architects. The plans and specifications themselves had already been introduced. It was stipulated that identical resolutions and acts applied to each of the parcels under condemnation. The plaintiff then offered in evidence a resolution (required by section 12 of the act) adopted by the Housing Authority on December 1, 1939, authorizing the acquisition of certain land by eminent domain proceedings required for Low Rent Housing Project Cal. 3-1, and directing the filing of condemnation proceedings. A copy of this resolution was attached to the complaint. It was stipulated that a similar resolution was adopted with respect to each parcel involved herein. A comparison of the requirements of the statute with these several pieces of evidence shows that there was full compliance with them. The appellants make no claim to the contrary. On the first question, that of public use, we are satisfied that there was a full and satisfactory showing, and that there can be no question (see the decision

As to the question of necessity: The chairman of the board of architects of the Oakland Housing Authority, an architect of twenty-five years’ experience, identified the plans and specifications for the housing units here involved, which were thereupon admitted in evidence without objection. He described the “layout,” testifying as to the boundaries of the site; that there were thirty-nine buildings in it, that there were seven parking areas provided between a row of two-story fiat buildings and that there were walks and drives, play areas, clothes drying yards, disposal facilities, a service yard, and an administration building. When asked respecting garden space he answered that “the entire buildings are fronted alongside by a front yard and in the back by a backyard and the tenants maintain garden areas.” He was then asked whether, in his opinion, in order to secure a proper layout for the proposed buildings, “that area sought to be acquired is necessary for the buildings and the auxiliary uses” to which he had referred, and he responded that “The entire area is necessary in order to accommodate the number of units which apparently is the maximum that could be placed upon that given ground area and still allow adequate room for front and backyards, parking areas, light and that sort of thing.” He was not cross-examined.

From the foregoing it appears that the respondent, acting through its officers, agents and advisers, selected the seven-block area (within which are the homes of the appellants) as the most desirable for this particular project. There is not the faintest suggestion that the area was selected under the slum clearance provisions of the law; it was selected because it was the most available and desirable site for the new project. It is suggested—and no more than suggested—by the appellants that the act contemplates that the new housing project shall be built upon an area which has been vacated under the slum clearance provisions of the law. But that this is not so is definitely decided in Riggin v. Dockweiler, supra. The language of the act is in the alternative; the new project may be built upon the cleared area,, but it need not be. The appellants are tax-paying, law-abiding residents who are content where they are, and desire to be undisturbed.

In the selection of a location the condemning party is vested with wide discretion. (City of Pasadena v. Stimson, 91 Cal. 238 , 257 [ 27 Pac. 604 ]; Vallejo etc. R. R. Co. v. Home Sav. Bk., 24 Cal. App. 166 , 170 [ 140 Pac. 974 ] ; Tuolumne Water etc. Co. v. Frederick, 13 Cal. App. 498 [ 110 Pac. 134 ].) Section 1242, Code Civ. Proc., gives the condemning party the right to locate land required for public use but “it must be located in the manner which will be most compatible, with the greatest public good and the least private injury.” There was every opportunity in this case for the appellants to develop their claim with respect to incompatibility. They did not cross-examine the witness Warnecke at all. They cross-examined the witness Bells at some length. He had given considerable testimony for the plaintiff, after having qualified as a real estate operator and appraiser of twenty-two years’ experience in Oakland; he was a director of the Oakland Beal Estate Board and had been a member of the City Planning Commission for about eight years and was then its chairman. He was questioned with respect to values. On cross-examination he was first questioned with respect to the way in which the “Peralta Village” area had been selected as against other locations. He testified that the planning commission had conducted a city-wide survey about 1936, to determine housing conditions in Oakland, under the direction of the commission’s engineer. That survey was reviewed by the Housing Authority to arrive at “the most logical place for a housing project.” According to his testimony, it was the recommendation of the planning commission’s engineer to the Housing Authority “that decided the location for West Oakland.” The witness had made an investigation of this property about a year and a half before the trial with another appraiser, who came from Washington, with a view to ascertaining “the probable cost estimate of the land in the area.” The second part of the cross-examination had to do with the condition of the houses of the appellants, the evident purpose of the questions being to develop the fact that they were structurally sound, habitable, and in good condition despite their age, and that they were sanitary, and were not of the type needing

It must be concluded that there was ample proof of public use and necessity, and no proof at all of incompatibility.

The case of City of Santa Ana v. Gildmacher, 133 Cal. 395 [ 65 Pac. 883 ], is relied upon by the appellants as holding that “the question of necessity is one of fact, to be determined by the jury, in view of all the evidence in the ease.” The Reed Orchard case, supra, at p. 557, deals at some length with the Gildmacher case, and concludes as follows: “The case cannot be regarded as a decision that the owner is entitled as of right to a jury trial upon all the issues that may be presented in an action of condemnation. It does not purport to decide that question. If it so held we should feel obliged to overrule the decision as contrary to the statutory law on the subject.”

The appellants express the fear that their property may be taken for one purpose and thereafter used for another. There is a ready answer to this. There is a presumption, well recognized by the cases, that public officers will carry out their functions and exercise their powers in accordance with the law. (People v. Globe Grain & Milling Co., 211 Cal. 121 , 128 [ 294 Pac. 3 ] ; Ellis Landing & Dock Co. v. City of Richmond, 70 Cal. App. 720 , 723 [ 234 Pac. 336 ].)

Section 1243, Code Civ. Proc., contains, among others, the following provision: “ A lis pendens shall be filed at the time of the commencement of the action in every county in which any of the property to be affected shall be located.” Appellants point out that no proof of the recordation of any lis pendens was ever made, and the transcript is silent on that point. They argue that § 1243 refers to the jurisdiction of the superior court to try a condemnation action. The headnote of the section, punctuated into four parts, reads as follows: “Jurisdiction and venue: Proceedings commenced, how: Change of place of trial: Lis pendens.” It would seem, off-hand, to deal

An instruction was given to the jury with respect to the testimony of witnesses on value, concluding as follows: “and you may, in your discretion, reject the testimony of any witness who has expressed such an opinion if it appears to your satisfaction that such an opinion is not based on such thorough knowledge of all the facts and circumstances relating to the property itself as to enable him or her to express a 'true opinion as to its market value.” This, appellants say, “was in effect an instruction that they could utterly disregard the testimony of any witness they desired” and they urge it as prejudicial error, citing Hirshfeld v. Dana, 193 Cal. 142 [ 223 Pac. 451 ], and Pearson v. Crabtree, 70 Cal. App. 52 [ 232 Pac. 715 ].

In the case of Los Angeles City High School District v. Schumann, 78 Cal. App. 353 [ 248 Pac. 737 ], an instruction which contained almost identical language was given. On appeal the giving of such instruction was urged as error but the judgment was affirmed. After a petition for rehearing had been denied there was a petition for hearing in the Supreme Court. In denying the petition the Supreme Court withheld its approval of the part of the instruction which was criticized, but added “We do not, however, deem the above portion of the instruction, when read in the light of the other instructions given by the court, to be sufficiently prejudicial

As already indicated, by stipulation, fourteen other cases have been consolidated with the instant case. These eases were numbered in the Superior Court 156082, 156083, 156109, 156110, 156111, 156159, 156160, 156505, 156523, 156546, 156583, 156806, 156808 and 156849.

The judgment in the instant case is, and the judgments in the fourteen consolidated cases are, affirmed.

Peters, P. J., and Ward, J., concurred.

Appellants’ petition for a hearing by the Supreme Court was denied May 28, 1942.