City of Manhattan Beach v. Superior Court , 13 Cal. 4th 232 ( 1996 )

KENNARD, J., Dissenting.

I agree with the view expressed by Justice Mosk in his concurring and dissenting opinion that the 1888 deed at issue here conveyed an easement, and not, as the majority holds, a fee interest. As Justice Mosk points out, both the language of the deed itself (conc. and dis. opn. of Mosk, J., ante, at pp. 252-261) and the extrinsic evidence (id. at pp. 262-265) compel the conclusion that the interest conveyed was an easement.

Unlike Justice Mosk, however, I would hold liable for inverse condemnation not only defendant City of Manhattan Beach (the City), but also defendant Atchison, Topeka and Santa Fe Railway Company (Santa Fe), because the latter was actively, and jointly with the City, involved in the condemnation of the property here in issue.¹

The City and Santa Fe entered into a contract, the “Park Acquisition Agreement,” to enable the City to develop a park on land involved here in exchange for certain benefits to be granted Santa Fe by the City. The contract states in relevant part: “This Agreement is for the purpose of carrying out the Project. City seeks to obtain certain public benefits as set forth herein. Santa Fe seeks to transform undeveloped property in City into developed property in accordance with the plan for the Project.” Under the agreement, Santa Fe promised to indemnify the City against claims to title of the property here in issue and reserved the right to initiate eminent domain proceedings in the City’s name. The City, in turn, agreed to cooperate with Santa Fe in eminent domain proceedings; to rezone property acquired by the City as open space; to grant Santa Fe redevelopment rights to part of the property retained by Santa Fe; to rezone property held by Santa Fe to allow for commercial planned development; and to help Santa Fe acquire access to property retained by Santa Fe. Because the Park Acquisition Agreement reflects significant actions by both the City and Santa Fe, I would hold them jointly liable for the inverse condemnation. (Breidert v. Southern Pac. Co. (1964) 61 Cal.2d 659, 662 [39 Cal.Rptr. 903, 394 P.2d 719] [railroad is proper party to inverse condemnation action if it was an active joint participant in taking property for public use].) This conclusion was also reached by the trial court and by the Court of Appeal.

I would affirm the judgment of the Court of Appeal.

Werdegar, J., concurred.

The petition of real parties in interest for a rehearing was denied June 19, 1996. Mosk, J., Kennard, J., and Werdegar, J., were of the opinion that the petition should be granted.

1 Because the majority concludes that Santa Fe had full legal title in fee simple, it does not address the question of whether Santa Fe is jointly liable with the City for inverse condemnation.