Colberg, Inc. v. State of California Ex Rel. Dept. Pub. Wks.

These consolidated actions 1 for declaratory relief present the common issue whether plaintiff shipyard owners will have any causes of action for damages under the law of eminent domain arising out of the impairment of their access to the Stockton Deep Water Ship Channel as a result of the construction of two' proposed fixed low level parallel bridges spanning a connecting navigable waterway to which their properties are riparian. Separate judgments on the pleadings in favor of defendant State of California were entered below and all plaintiffs have appealed.

The record discloses that although the judgments were entered upon an order granting separate motions for judgment on the pleadings, defendant filed no answer in either case. Its motion therefore had the purpose and effect of a *412 general demurrer (2 Witkin, Cal. Procedure, p. 1706) and on review is to be tested by the same rules. (Dragna v. White (1955) 45 Cal.2d 469, 470 [ 289 P.2d 428 ] ; Chas. L. Harney, Inc. v. Contractors’ etc. Board (1952) 39 Cal.2d 561, 565 [ 247 P.2d 913 ].) Since the motion was used to perform the function.of a general demurrer, it ‘'reaches only to the contents of the pleading and such matters…

I dissent.

I cannot agree that because the state wants to build two low-level highway bridges across the mouth of an inlet where plaintiffs’ shipyards are located, plaintiffs must suffer the complete loss caused by the impairment of their right of one-way water access to deep water. Principles of fairness, logic and public policy suggest that this loss is a part of the cost of the freeway that should not be borne by plaintiffs but should be borne by the public. Compensation should therefore be allowed.

The access impaired here is one-way access to the oceans of the world. Such access is indispensable to the operation of plaintiffs’ businesses. 1 So, the impairment is not technical. It is substantial and different in nature and degree from the impairment suffered by the general public. There is not involved the mere hypothetical damage to vacant land, nor are we dealing with speculators, nor with newly created businesses. Both plaintiffs have been operating bona fide shipyards in the inlet for over 60 years. Thus, we are not involved with a mere incidental impairment of the right of access but are dealing with a very substantial impairment. The impairment is not caused by a…

These consolidated actions [fn. 1] for declaratory relief present the common issue whether plaintiff shipyard owners will have any causes of action for damages under the law of eminent domain arising out of the impairment of their access to the Stockton Deep Water Ship Channel as a result of the construction of two proposed fixed low level parallel bridges spanning a connecting navigable waterway to which their properties are riparian. Separate judgments on the pleadings in favor of defendant State of California were entered below and all plaintiffs have appealed.

[1] The record discloses that although the judgments were entered upon an order granting separate motions for judgment on the pleadings, defendant filed no answer in either case. Its motion therefore had the purpose and effect of a general demurrer (2 Witkin, Cal. Procedure, p. 1706) and on review is to be tested by the same rules. (Dragna v. White (1955) 45 Cal.2d 469, 470 [ 289 P.2d 428 ]; Chas. L. Harney, Inc. v. Contractors' etc. Board (1952) 39 Cal.2d 561, 565 [ 247 P.2d 913 ].) [2] Since the motion was used to perform the function of a general demurrer, it "reaches only to the contents of the…