Rose v. State of California

In Rose v. State of California (1942) 19 Cal.2d 713, the street in front of the plaintiff's property was 66 feet wide, until a subway, 24 feet in width, was constructed in the center, leaving very narrow lanes and sidewalks on each side of the subway. (See 19 Cal.2d at p. 718.) Such a construction was an interference with the abutting property, and the extent of the interference and the amount of damages was for the trier of fact to determine. (Id. at pp. 729, 737-741.) In Rose, however, the property was hardly developed. It consisted of a three-acre fruit orchard improved only by a residence, windmill, tankhouse, and barn. (Rose, supra, 19 Cal.2d at p. 718.) The Court said: "The rights of an abutting owner to access to the street are the same whether his property is situated on a street in the business district of a large city or in the residential district of a small town. The extent of the damage for interference therewith might be different, but the right of access to the street would be the same." (Id. at p. 730.) "That the owner of property fronting upon a street or highway has as appurtenant thereto certain private easements in the street in front of or adjacent to the lot--distinguished from the public easements therein--which are a part and portion of his property and are the private property of the lot owner as fully as the lot itself, is not open to question." (Rose, supra, 19 Cal.2d at pp. 726-727.) "'This right is peculiar and individual to the abutting owner, differing from the right of passing to and fro upon the street, which he enjoys in common with the public, and any infringement thereof gives him a right of action . . ., and that any act of the municipality by which that easement is destroyed or substantially impaired for the benefit of the public is a damage to the lot itself within the meaning of the California Constitution for which he is entitled to compensation.' " (Rose, supra, at p. 727.) After characterizing a portion of former article I, section 14 of the California Constitution as limiting the state's power of eminent domain (Rose, at pp. 719-720), the Supreme Court concluded: "Since article I, section 14, therefore, is a restriction placed by the Constitution upon the State itself, and upon all of its agencies who derive from it their power of eminent domain, it cannot be said that the mere failure of the legislature to enact a statute allowing suit to be brought against the state entitles the state to disregard and violate that limitation. The logical inference is that said constitutional provision is intended to be self-enforcing." ( Id. at p. 720.) The Supreme Court stated "that the State of California by said self-executing provision of its Constitution has indicated its consent to be sued thereunder." ( Id. at p. 722.) Finally, the Supreme Court observed: "'To hold otherwise would be to say that the Constitution itself gives a right which the legislature may deny by failing or refusing to provide a remedy. Such a construction would indeed make the constitutional provision a hollow mockery instead of a safeguard for the rights of citizens.'" ( Id. at p. 726.)