People Ex Rel. Department of Public Works v. Investors Diversified Services, Inc.

This is an action in eminent domain brought by plaintiff to acquire a 10- foot-wide strip from the frontage of defendant's property 408.51 feet in length for the widening of Devonshire Street. There was a pretrial hearing at which the court was called upon to decide certain questions of law. At that hearing it was represented to the court that the property was zoned A1, but that the highest and best use of the property would be for residential purposes, which would require a change of zone; and that under Los Angeles Municipal Code sections 12.32 and 12.37, an applicant for a change of zone of this property might be required to dedicate a 20-foot strip for the widening of the street. Such a dedication would include the identical land condemned in this action. At the pretrial hearing plaintiff advised the court that it expected to prove at the trial that the owner had made an application for a change of zone, and that other properties in the area which had obtained zone changes had been required to dedicate land for the widening of this street as a condition of the zone change; and that in the opinion of an appraiser a reasonable purchaser would take that into…

This is an action in eminent domain brought by plaintiff to acquire a 10-foot-wide strip from the frontage of defendant’s property 408.51 feet in length for the widening of Devonshire Street. There was a pretrial hearing at which the court was called upon to decide certain questions of law. At that hearing it was represented to the court that the property was zoned Al, but that the highest and best use of the property would be for residential purposes, which would require a change of zone; and that under Los Angeles Municipal Code sections 12.32 and 12.37, an applicant for a change of zone of this property might be required to dedicate a 20-foot strip for the widening of the street. Such a dedication would include the identical land condemned in this action. At the pretrial hearing plaintiff advised the court that it *369 expected to prove at the trial that the owner had made an application for a change of zone, and that other properties in the area which had obtained zone changes had been required to dedicate land for the widening of this street as a condition of the zone change; and that in the opinion of an appraiser a reasonable purchaser would take that into consideration if…

I dissent. “It is, of course, an elementary rule of appellate procedure that a judgment or order will not be disturbed on an appeal prosecuted by a party who consented to it. ’ ’ So stated the Court of Appeal in Atchison, T. & S.F. Ry. Co. v. Hildebrand (1965) 238 Cal.App.2d 859, 861 [ 48 Cal.Rptr. 339, 341 ], as it dismissed the appeal citing six of the many cases that it could have selected, beginning as far back as Imley v. Beard (1856) 6 Cal. 666 . So far as I am aware, given the premise “who consented to it,” no exception has been made in a “ hard case. ’ ’

It seems clear to me that our appealing plaintiff “consented” to the judgment from which it appealed. The judgment’s opening words were: “It appearing to the Court that *377 plaintiff above-named and defendant Investors Diversified Services, Inc., a corporation, . . . have stipulated to judgment in condemnation herein between said parties with respect to the real property . . . and other than the Findings of Fact and Conclusions of Law dated July 1, 1965, on file herein, have waived further Findings of Fact, Conclusions of Law.

There were two stipulations in the files at the time the judgment was entered. Whatever the…