# Brief Opposing Motion to Dismiss — Griffith v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0040%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief Opposing Motion to Dismiss - **Published:** January 1, 1960 - **Citation:** 364 U.S. 476 ## Text ¥ SUBJECT INDEX , 2 % PAGE a. _ The jallepueet appealed from does not rest upon any adequate . CS RDO EE TL j If. * The federal questions raised by appellant ba not rest upon “false gk EN ST TD wei. 3 1. ‘As to the relation between the 1897 andglg98 deeds...... 4 2. Denial to leave to file cross-complaint was denial to appellant of due process Of laW...........ccseececsessssseeeteneenenes 6 3. Exefusion of evidence of value of lands taken denied 4 appellant due process of law... oo... cccccccccccceceeseeeeeececeee 9 2 ; III. A substantial federal question is presented by this appeal baits 10 a , The state court's decision necessfrily involves the three federal questions raised, and it actually passed upon them................ M1 _V. : Appellant sufficiently raised. the federal question ef his right to compensation as reversioher of the park land taken........ 13 s Appellaht i is denied his property right of reversion.............. 15 ao vi ? This taking is in violation of the due pracess clause of the Fourteenth Amendment of the United States Constitution... 21 , . . . . VII. : Sai@ taking constitutes impairmentgof the obligation of the contract of gift as resting upon subsequent legislation pro- . * hibited by Section 10 of Article I of the Constitution of the’ a sorrosnicenaiantenosevenaashsbonsanvsiianingeuisenes atts 23 IID cecshiistsdnssninaceinsaitese sadenbabantieeiiaiiabadelthdbiiahidamenmaunaia eenpianpiinas 26 ‘ \ ii. ‘TABLE OF AUTHORITIES CITED : : Cases ' PAGE Charleston Fed. 5. & L. Assn. v. Alderson, 182 U. S. 182...... 10 Chicago, B. & ©. Ry. Co. y. Illinois, 200 U.S. 561... a City of Long Beach v. Aistrup, 164 Cal. oe ay Wiscciteadaniees 17 County of Marin vy. Superior Court, 53 A. C. 638, 2 Cal. PI RU coocell cheetahs ceca 24 Davidson v. New Orleans, 96. U.S. 97 .occccccccccccccoeceeo- 22 Delaware, L. & W. R. Co. v. Town of Morristowr 276 U.S 182 Be ee nnnneensinnns eeerescess oe 22 Dizon v. Duffy, 344-U.. S. 143...ccccccccccccsesscesesneeeosmescoccc Gana Feiner v. New York, 340 U. S. S15. SEE First Reformed Dutch Church v. Crosswell, 206 N. Y. S. 132.. 18 Firth v. Los Angeles Pacific Land Co., 28 Cal. App. 399........ 16 Glogan v. Hagan, 107 Cal. App, 2d 313... isinddannnadie 8 Griffith v. ea of Public Works, 141 Cal. App. 2 2d - RESETS AE TSAI cee SD Richins anniehinlad 19, 20, 25 Hall v. Fairchild, 66 Cal. A RE ee Harris v. Elliott, 10 Pet. (U. S.) 25........ccscccccccorssesssoscosssiesecs.c. 18 Herndon vy. Lowry, 301 U. S. 242.0000 iniatiemmeienatns 10 Honeyyan v. Hanan, 300 U. S. Fasnesonlinassnsonsesteniniessinaieie 11 International Harvester Co. v. Missouri, 234 U. S. 199... 12 James v. Gulf Refining Co., 206 Miss. 781.000.000.000... 18 Lancaster School District v. Lancaster County, 265 Pa. 112.... 18 Los Altos School District v. Watson, 133 Cal. App. 2d 447.... 17 Louisville & N. R. Co. v. Melton, LS? Lovell v. City of Griffin, 303 U.S. 444... insanecscemneanenesas 11 Marin County Water Co. v. Marin County, 145 Cal, $86... 22 Milheim v. Moffat Tunnel Imp. Dist., 262 U. S. 710.............. 10 Mulvey vit W angemheim, 23 Cal. sin (cea Niemotko v. State of Maryland, 340 SS ee ° © “4 iti, PAGE North Conduit Avenue, In re Opening and Extending of, 262 App. Div. 70, 27 N. Y. S. 2d B41... diaiainidendninsabaiteiniinioginen . 18 Olmstead v. City of San Diego, 124 Cal. om REET Oe 20 Olson v. United Stat&, 292 U.S. 246.0... cc. A ‘22 People v. Buellton Development Co, 58 Cal. App. 2d 178.....6, 7 People v. Peninsula Title Guaramty Co., 47 Cal. 2d 29............ 17 Porter v. International Bridge Co., 206 N.Y. 234......0cc000.. 18 Roberts v. City of Palos Verdes Estates, 93 Cal. App. 2d 545.. 20 Rene v. Department of Public Works, 17 Cal. 2d 189..:...... 18 __Russakov: v.. McCarthy Co., +206 2 ae 17 Santa Monica v. Jones, 104 Cal. App. 2d ER AT 18 Sisk v. Caswell, 14 Cal. App. 377... sellin “— ~ St. Louis, I. M. & S.R. Co. v. McWhirter, 22° U. S. 290... 2 ' State Tax Commission of Utah v. Van Cott, 306 U;: S. 511... 2 Store Properties v. Neal, 72 Cal. App. 2d 112.0... ccc ccccseesse. 5 Titus v. Wallack, 306 U. S, 382......... ENA 5 ARO 2, 12 Toledo, St. L. & W. R. Co., 236 U. S. 454... sinnsaiciiiaiiaeuniatian 12 United States v. 2,184.81 é “.es at Land, 44 Fed. Supp. 681... 18 Ward y. Love Co., 253 U. a a Ce 12 Washington ex rel. O. R. & N. Co. v Fairchild, 224 U. S. UE deiiehiteiechacnbtinlatinenntasiniihitideentasiditasansecnamneecite tc 22 West Chicago St. R. Co. v. Illinois ex rel., 201 U. S. 506........ 12 Wing v. Forest Lawn Cemetery Assn., 15 Cal. 2d 472............ 5 STaTUTES California Civil ‘Code, Sec. #109 .. ieee ee ae, nieddcdaaia 16, 17 —— Code of Civil Fossnder, i ee 22 Calffornia Code of Civil Procedure,.Sec. 1253..00000000000............ 17 California Constitution, Art. XI, See. 8.000. me.24, 25 California Constitution, Art. XI} Sec. 13 ..........: icocuibeiinleitea 25 California Constitution, Art. XI, Sec. 103.S..ccccccccccecscscesssooe 25 ‘ a iv. PAGE Los Angeles City Charter, Sec. 13:00... — c Los Angeles City Ordinance No. 107485................... —, United States Constitution, Art. I, Sec. 10... 13, 24 United States Constitution, 14th Amendment ......................13, 22 TEXTBOOKS F i8 California Jurisprudence 2d, Sec. 1, See 15, 16 36 Corpus Juris Secundum, Sec. 243, p. 150, note 94.0000. 11 36 Corpus Juris Secundum, Sec. 244, p. 158, mote 2............... 2 36 Corpus Juris Secundum, Sec. 244, p. 152, note 4.......... en 2 36 Corpus Juris Secundum, Sec. 244, p: 152, note 27s............ 12 36 Carpus Juris Secundum, Sec. 244, p. 152, nete.99......00... £1 36 Corpus Juris Secundum, Sec. 244, pp. 152-153, note §......-12 36 Corpus Juris-Seetindum, See. 274, p. 177, note 36........:..... 10 13 Cyclopedia of Federal Procedure, Sec. 57.157, p. 248, I Biigseecasesesvscesascinctpespetnseciiineniainieataennnssictnnssaasisaenessis niga — a - 13 Cyclopedia of Federal Procedure, Sec. 57.189, p. 290........ 2 13 Cyclopedia of Federal Procedure, Sec. 57.191, p. 293, RUIN. Wap eisenicsiinsieisensvensnetainesistasetinnsastitatamiadis tia 12 Restatement of Law of Property, Sec. 44(b), p. 121........016 Restatement of Law of Property, Sec. 44, Pp. 28-129... 16 Restatement of Law of Property, Sec. 45, p. 135ff........... 16 Restatement of Law of Property, Sec. 45, p. 140.000.0000... 16 IN THE Supreme Court of the United States 7 October Term, 1960 , No. 457 VAN M. GRIFFITH, Appellant, US. PEOPLE OF THE STATE OF CALIFORNIA, acting by and through the Department of Public Works, , Appellee, * rag? . City or Los ANGELEs, a municipal corporation, et al., Appellees. IN OPPOSITION TO MOTIONS TO DISMISS. pa Appellant, Van M. Griffith, hereby opposes the mo- tions of appellees to dismiss his appeal and makes re- ply thereto as follows: 7 .? I. PS The Judgment Appealed From Does Not Rest Upon * Any Adequate Non-Federal Basis. Appellee’s motions to dismiss fail te point out any n™M-federal ground upon which the decision of the Cali- jornia District Court of Appeal may rest. The fact ts that the issues involved in this eminent domafn pro- ceeding are necessarily : ~~ oe Whether appellant reversioner may be wholly de- , nied compensation for the taking of the park lands which reverted to him ( Point V. below); ’ ~? \e —_ 2. Whether he has been accorded due process of law for the deterntination of his rights ( Point VI, below) : 3. Whether the state statutes passed subsequent to City appellee's acceptance of the deed of gift under the provisions of the City charter constitute impairment of the contract (Point VII, below). “The supreme court may not be excluded from assuming jurisdiction on the mere suggestion or conjecture that the state court rested its decision on non-federal grounds.” 13 Cyc. Fed. Proc. 290, Sec. 57.189, citing St. Louis, 1. M. & S. R. Co. v. McWhirter, 229 U.-S. 290, which held that ~ “Mere conjecture may not be indulged in fop the purpose of concluding that because there wac’a po- tentiality. of considering the case from a_non-fed- . eral point of view, therefore it was considered and decided in that aspect.” (1. ¢. 276). See also Titus v. Wallick, 306 U. S Fg 2908 ; so Dixon v. Duffy, 344 U.S. 143: , 36 C. J. S. 152, section ee note 2. > “Where federal ground is so interwoven with otl* er as not to be an independent matter, or is not of sufficient breadth to sustain the judgment with- out any decision of. the other, the court has juris- diction.” 36 C. J. S. 152, Federal Courts, Sec. 244, note 4: State Tox C ommission of Utah v. Van Cot it, 306 U. S. Si, 5828. None of appellees’ cases relating © non-federal grounds are applicable to the facts here .- The Stembridge, Buck, - wd a Tt ——— anfive and Zorach cases (cited wn page & of City appellee's : ~ - ;' motion) expressly hold that the decisions of the stite courts in cach of thofe cases, rested on non-tederal grounds. The Hammerstein case (there cited) “was continued to enable petitioner appellant to apply to. the California courts for certificate or other expression to show whether. judgment involved ay federal questton. We will show in the next point that the federal ques- tions raised by appeliant do mot rest upon “false as- sumptions” of fact, as asserted by appellees, but that appellees statements of fact to the contrary are incor- rect. Il. The Federal Questions Raised by Appellant Do Not Rest Upon “False Assumptions” of Fact. The only issues of fact disputed by appellees relate (1) to the 1897 and 1898 deeds of. the park lands t the City ot Los Angeles as affecting the qtestion of reversion and right: of appellant to compensation, (2) as to time of filing answers and motion for leave te tile cross-complaint as affecting due process, and (3) as- to evidence of value of lands taken as attecting cue yetene. Appellees tail- ty pein? out specifically any “false assumptions” of’ fact upon which rest the fed- eral quéstions raised by. appellant (See Statement of Facts by City appellee, pp. 2-5, and by State appeHee. pp. 2-4). Both appellees refer merely to the indefinite statements of fact in the opinion of the District Court Appeal and do not cite any. of the record of the trial court upon which appellant rests as to the fed- eral questions raised by him (See Jurisdictional State- ment, pp. 7-9). We now point out errors of fact in appellees’ arguments. t ry — 1. As to the Relation Between the 1897 and Deeds. Appellant contends that the 1897 deed was merged in the 1898 deed and that the latter consummated the gift of the park to the City and contains the binding and conclusive provisions and conditions of the gift (See Point V_ below). It is not true that the 1897 deed c« mveyed 3000 acres - of the park-land. There was no such finding of faet by the ‘trial court | See Finding of Fact No. VIII, Clk. Tr. pp. 102-5]. And the evidence introduced hy de- fendant City appellee shows that less than a tenth of the 3000 acres was conveyed by the 1897 deed, and that the whole of the tract of SO15.788 acres (including all land in the 1897 “deed ) was conveyed by the 1898 deed and then finally accepted and «edicated as Grif- fith Park by the City of Los Angeles. “The bounda- ries of the land conveyed by the 1897 deed are shown in Exhibit C as outlined .in orange color and wholly enclosed within the boundaries of the land conveyed by the 1898 deed as marked by No. 2 and outlined in brown color on said Exhibit C, which is the map in- troduced in evidence by defendant City appellee. © This is also shown by the oral evidence introduced by ap- pellees at the trial, ¢ ; It is also shown on the map Exhibit A introduced in evidence by defendant City appellee that the land tak- en which is claimed by appellam, by rght of reversion is a portion of the land conveyed by said 1898 deed. According to testimony introduced by plaintiff. appellee the land taken included 102.305 acres conveyed by said 1898 deed [Rep. Tr. p. 79f. The portion ‘taken of the 1897 deed (also included in the 1898 deed). as shown on map Exhibit A, was only 45.907 acres, = The facts appertaining to the therger of all instru- - ments of the park gift in the 1898 deed are the fol- \ lowing: * Offer of the gift was a by lett dated December 16, 1896 [C. T. p. 28, lines 18-23: pp. 38- 39; Ex. D; R. T. p. 157, lines sia 6: p. k5&, lines 1-11]. . Said offer was accepted on the same day by city or- dinance No. 3975 (New Seriés) with directions to the City Engineer to survey and establish the boundaries of the Land and to the City Attorney then to prepare the necessary conveyance [C. T. p. 28, lines 25-30, -pp. 40-41; Ex. E: R. T. p. 158, lines 12-16}. A’ pariial . aay conveyance of a small portion. of the 3000 acres was made by said 1897 deed. All of said land offered was conveyed by deed executed and delivered on March §, 1X989}C. T. p. 28, line 32, to p. 29, line 6: pp. 42-47: | Ex. G; R. T. p. 159, lire 16, to p. 100, line 5]. and on the same date was accepted by ordinance No, 4926 and recorded by the City [Fx. H: R. T. p. 160, lines O12]. It was not until said 108 conveyance and or- —dinance that the transaction of gift: was completed i accordance with the terms of said letter of otter Ie as: bit D. As held in Sisk 7 Caswell, 14 Cal. App. 277, 387: ; “All the prior agreements and negotiations of the parties ... . of the lands here involved were, of course, merged in the deed of conveyance, ‘and the deed itself must . . . be the sole guide for measuring and determining the rights of the piar- ties. thereunder.” ~ See also Store Properties v. Neal, 72 Cal. App. 2d 112, and Wing v.. Forest Lawn Cemetery Assn., 15*Cal. 2d 472, 47°. | oe oe The difference in the acreage’ as stated in the letter of goffer Exhibit D (¢3000° acres) and that conveyed by the 1898. deed Exhibit G (3015.788 acres) is ‘such a material difference as in this taking of approximately ; 200. acres would amount* to several hundred thousand dollars of damages. - Besides. less than half the land herg involved was conveyed: in the; 1897 deed (45, 907 acres), while that taken of the land eg by ‘the 1898 deed is 102.305 acres [R: T. p. 79]. Therefore, the provisions ‘of the 189% deed a: conveyed only a determinable fee to the City entitle appellant reversion- er te _compensation for his land taken in this eondem- nation proceeding (see Point hd below ). / 2. Denial of Leave to File Coase Oagtates wes Denial to Appellant of Due Process of Law. *. State appellee contends«“that appellant-defendant could have raised all of -his alleged’ rights by answer to the complaint in eminent domain so that no®cross-complaint is necessary to protect any ee of a property owner” (p. 3 of Motion, par. 5}. * Appelice’s contention is in conflict with the — of the ruling case it cites, as authority on page "8 *Of its Motion, People v. Buellton Development Co., 58 Cal, App. 2d 178. Quoting from the opinion of that case :> . “The provision for an answer in eminent domain requires the defendant to set forth therein his cs tate Or interest in the property to be condemfed, but it makes no,provision for service thereof. upon another defendant who may have a.contlicting claim, ov for the framing of _tssues upon such ¢onflict-— & ’ « "\ ~ . 6 ing claim. No ont a statute could raise such issues without pleadings, and it would probably be within constitutional limits if it required that a defendant, after service of process to bring him * irtto the action, be charged with notice of adverse —— Claims upon him, in regard to the *subject matter -of the action, by the pleadings of any of tHe par- ties thereto. But this would be an uncertain and inconvenient procedure for framing and trying such issues, and we see ne reason for placing such a > © Construction upon a statute if another more reason: able one is' permitted by its language, “Plaintiff objects that the cross-complaint cov- ered other land than that to be condemned, as de- scribed in’ the complaint, and raised issues as to the title of such other land. But it is well estab- lished that in an action involving land as its sub- ject matter, a cross-complaint affecting that ‘land and also other land may properly be filed, where the cause of action set up therein affects such other land and that described-in the complaint as a unit. or in such manner that one cannot. be. separated from the other without prejudice to the party il- / ing the cross- complaint. “<< oe cross-complaint here comes well within this rule... . The order striking appellangs’ cross- -complaint is reversed, @ The Buellton case is g” this point conclusive that only by cross-complaint could appellant-defendant contest with PCity-defendanit their ‘conflicting claims relative’ to the resersion « of Griffith Park and his right to compensa- fs ‘fen for the portion taken, ° ¢ State appellee also contends that it was proper to ‘deny relief by cross-complaint because of . the lateness of the attempted filing thereof and because it was not «filed . > at the time of filing the original answer ( Motion, pp. 7-9). But this contention disregards the facts that, subsequent to the filing of the original complaint pray- ing for an injunction, plaintiff-appellee took possession of the portion of Griffith Park described int the com- plaint and -constructed the state highway thereon [C. ° p. 102. lines 5-6, and -R-T. pp. 388-591; Ex. P];: — 2 City appellee did not file its answer antil Decembe 7, 1957, in which it opposed the takipg on grounds sim- ilar to those in this defendant- -appellant’s answer [C. T. pp. 68-69|; but that one year later City defend- ant-appellant abandoned those defenses and consented and acquiesced in said taking by Resolution of its Board of Recreation and Park Commissioners No’ 2859 (adopt- ‘ed December 11, 1958 [R. T. p. 422] and by City Ordinance No. 107485, adopted January 8, 1959 [R. _ 2 Tp: 433}, Very soon theren iter on ‘January 19, 1959, ¢ _defendant-appellant filed motion for eaye to file his ' proposed cross-complaint [C. . pp: 153-164], which motion was denied-[C. T. p. 165]. Deféndant- ~appel-. lant’s motion for leave to file said cross- complaint was ~ obviously timely, and it was an abuse ‘of discretion to deny *his said motion, and thereby he Fas deprived of due process of law (See also Point VI below), Inasmuch as a clear abuse of discretion appears here, [ the’citedcase-of Glogau v. Hagan, 147 Cal. App. 2d - . 8 - ¢ Oo, 313, 320, is not in point here, as to untimeliness of fil- ing cross-complaint, but that case does recognize the principle that abuse of discretion is ground to defeat the trial court's adverse ruling. x ’ 3. Exclusion of Evidence of Value of Lands Taken . Denied Appellant Due Process of Law. - It is not true thes, appellant offered: no evidence as to the value of his interest. All evidence as to value was excluded on the ground that defendant- -appeltant had no title to the land and was therefore not concerned as to the value of the land LR. T. pp. 424-430; p. 382° lines 7-12; p. 409, lines 17-26; p. 413, lines 2-23; p. 11, lines 19-22; p. 329, lines 16-22; pp. 410-421jy ' For the 200 acres of park land taken the City set- tled for $3,750,000.00 by stipulation and agreement’ With the State, and no evidence was taken as to the actual value of the land. Presumably on that basis defendant- appellant's interest was woFth_ more —than_ one_million - dollars, ‘ - However, in this appeal the issue is not as to the value of his interest but as to whether he had his day in court and due process as yuaranteéd by the Consti- tution of the United States. 2s / ° —10— a , - = oe 3 A Su¥stantial Federal Question Is Presented by ee This Appeal. City appellee admits that “At page 9 of his State- ment of Jurisdiction appellant refers to the first point at which we can agree that he raises a federal ques- tion’’, and then makes u condensed statement of the three grounds for. federal jurisdiction OF this case as urged by appellant (p. 11 of Cith AppeMee’s Motion ~ _ Miss,). As to whether paragraphs 1, 2, 3, -and 4 are rele- vant as showing that appellant raised federal questions ‘prior to assignments of err wr in his Opening Brief; we ‘think.the following authorites are pertinent: ' “Where a federal question has actually been con- sidered and decided by the state court of last re- “sort, the, time at which the‘method -by which such question was presented is intmaterial as bearing on the right to“a ‘review in’ the United States Supreme. court.” ; 4 36 C. J. S.-177, Federal Courts, Sec. 274, note” .) 36, citing: + ‘ | Herndon v. Lowry, 30r U.S: +2, 247: Charleston Fed. §. & L. Assy. v, Alderson, 182 U. S. 182, 185f.6 oe “A tederal_ question, is substantial. which requires analysis and exposition Jor its decision, even though on the meyits it mav' be decided against appellant!” - Mitheimgy. Moffat Tinnel Imp. Dist., 262 U. S. 710, 7168; |, | Louisville & N. R. Co. J Melton, 218 U..S. 34, 49; , ‘ P bat ce —ll— ‘ _ 36 C. J. S. 150, Federal. Courts, Sec. 243, note ; 94: ? : _13. Cyc. Fed. Phoc, 248, Sec. 57. 157, note 1.. Appellees have failed te show that there is no sub- stantial federal question or that a Sederal, question has not been Sutficiently- raised, ‘ . | IV... | The State Court’s Decision’ Necessarily. Involves the Three Fedesal Questions. Raised, and It Actu- . ally Passed Upon Them. ° “Whether a state court decided a federal ques- tion is, in itself, a fedéral question, which the su- | a" preme court determines from an examination of the record.” | 36 C. J. S. 152, Federal coms Sec. 244, note ai : nage Lovell vw. City of yr, 303. U. 44, 450, and cases giteg:7 ~ ‘ Honeyman v. Hanan, 300°U. S. 14. i8: “In cases in which there is a claim of denial of ’ rights under the Federal Constitution, this Court is not bound by the conclus®ns of lower courts. but will examine the evidentiary basis Gn which those conclusions are founded.” Niemotko v. State of Riedel 340 U.S. 208, ‘ y ; ae Feiner v. New York, 340 U. S. 315-316, “A state court cannot, by resting its judgment on some ground of local or general law, defeat the appellate jurisdiction of the Supreme Court of the - 6 : ? . a . United States, inva case where the federal question Was so involved that. its determination was neces- sary to the disposition of the issue.” 36 C. J. S. 152, Federal Courts, Sec. 244, note 27; Titus v7. Wallack, 306 U. >: 382. 290, 292: Ward wv. Love Coy, 253 U. S: 17, 22f: - - 13 Cyc. Proc, 293, Sec. 57.191, note 91. citing : W est Chicago St. R. Co. v. [llinois ex rel., 20° -' U.S. 506, 519f- Chicago, B. & Q. Ry. Co. v. lilinots, 200 U. S 561, 579-80. “The supreme court will review a federal ques- tion, although it was not put in question by the pleadings or direetly passed | on in the opinion, where it is appareht Doth from the pleadings and the rec- ord that, the decision of the state court could not have begin reached except by disposing of such ques- tion.” ve: i. g ‘ 36 C. J. S. 152-3, Kederal Courts, Sec. 244, note 3: —— *Foledo, St. L. & W. R. Co., 236 U. S. 454. . 457: : International Harvester Co. w Missouri, 234 U. S. 199, 207. In a condemnation suit. it is unescapiabte that the tak- ing of land without, compensation of a reversioner’s interest is prohibited by the United States Constitution, and is under the aforesaid authorities a federal quess * tion, , hotwithstanding silence of the state court's deci- ~ sion after the qu station had been raised. The denial of * Se right to compensation also constitutes denial of due * process ot law. Here too the pleadings stated facts showing the impairment ot the contract of gift by the subsequent legislation which was held valid in the lower courts. These federal questions are therefore necessarj- ly involved in-the decision appealed from. cos | Under the next three points appellant will show that. in conformity with the rules stated in the authorities cited by appellees (p. 11 of City” Appellee’s Motion), appellant has’ unmistakably declared in the state courts ° that he invoked. for the protection of his rights the provisions of the 14th Amendment and section 10 of. Article 1 of the United States Constitution, ® a | . * V. Appellant Sufficiently Raised the Federal Question of His Right te Compensation as Reversioner of the Park Land Taken. ! 1. In his original answer appellant alleged his reversion- ary right [C. T. p. 29, pars. IV and V]. the illegality of the attempt to take the park land [C. T. p. 32, pars. VIII, LX, and XI]. and prayed for an injunction against the taking [C. T. p. 37 |. Yn the proposed cross-complaint which he moved the court for leave to file, for a Tir cause of action he alleged ownership of the lands mveyed to the City -by said 1898 deed and sought to quiet title théreto against the City and State appellees herein [C. T. pp. 154-5, pars. 1, II, and HII]. For a second cause of action he alleged that plaintiff-appellee had taken a portion of said park land [103.305 acres; C. T. p. 1335, par. I] eye a ‘ ° —_’ a and hac. completed construction of said freeway thereon [C. T. p. 156, par. Vj, that said taking is in violation of the law and the City Charter «par. V1), is not for a more necessary public use (par. VII), that the act of the California Department of Public Works in said taking. Wwasgin abuse of discretion, arbitrary, capricious, (par. VIII), ultra vires and without legal right and in Violation of the 14th Amendyent of the Constitution of the United States [C. T. pp. 156-7 spar. IX]. Said Proposed cross-complaint also alleged the conspiracy of said. City in said illegal taking by not defending against said taking [par. XII, C. T. p. 158] and by permitting and agreeing to said taking by ratification and approval by the City Council on January 8.1959, of settlement for damages in the sum of $3,750,000.00 «. Ts 159, par. XIII]. Said cross-complaint further alleged that defendant Griffith as owner of the determinable: fee [C. T. p. 159, pars. XIV and XV] was” damaged by the said taking [C. T. pp. 162-3, par. XVII] and prayed fer quieting of title and for damages for the taking of the lands for the freeway [C. T. p. 163}. At the Pre-trial Conference defendant-appellant again claimed right to cross-complain and that the denial of his motion for leave to fil€ cross-complaint denied him his day in court to. agsert his claim for damages as reversioner of the determinable fee of said park lands | [C. T. pp. 180-1], and at the trial he continued to de- mand_ his right to cross-complaini [R. T. pp. 28-38, which was denied him [R. T. p. 145], bes ~ Defendant Griffith gave due Notice of Appeal from the Order denying his right to cross-complaint ,[C. T, p. 176]. ‘ = pe City appellee admits that this federal question, was duly raise’ in appellant's Opening Brief in the District Court of Appeal (City appellee's Motion to Dismiss, p- 11). (See Jurisdictional Statement, (p. 9, par. 5(a).) 2, Appellant Is Denied His Property Right of Reversion. The state, court's erroneous construction of the 1898" deed deprives appellant of his right as reversioner of the determinable fee to compensation as required by the 14th ‘Amendment of the United States Constitution for. thé taking in. eminent domain of ‘said park lands. The decision of the California District Court of Ap-. peal is on this point in conflict with California law as heretofore established and with the general law. The court erronéously construes the reversiogary clause as a condition subsequent and ‘holds that the titic has not reverted to him because of the taking and he is not entitled to compensation (Appendix Opinion; pp. 13- 16). : : The provision of the 1898 deed that “whenever sail tract of land hereby conveyed, or any part thereof shall cease to be used as a park; . . . then the lands hereby conveyed shall immediately . . . revert,” is, as the pre- cedents and authorities uniformly hold, the apt expres- sion ofa determinable fee. In“18 Cal/ Jur. 2d 395, Estates, Sec. 1. the distine- tion between a determinable fee and a condiffon - siib- sequent is defined with recitation of phrases construed in California cases, as follows: ; “Phrases such as ‘in case. . . then,’¢should oe then’, ‘in the event . . . then’, ‘while’. ‘so long théreafter as’ indicate a determinable interest. On “se Pa the other hand, prases Such as ‘if’ ‘of condition’, ‘failure . . . shall give . >. the right’ import es- tates on condition.” d The appellate court's opinion (Appendix p. 13) cites the irrelevant Sec. 45. p. 140, of Restatement of Law. Property. The California Annotations of that authority State that the California law js “in accord” with it (pp. 31 and 35). . As it states the difference between a determinable estate and a condition subsequent is that a fee simple determinable estate “automatically expires upon the occurrence of an event” (Rest. Prop.. Sec. 44(b), p. 12). while a fee simple upon condition subse- quent requires a re-entry to terminate the estate ( Rest. Prop. Sec. 45, p. 133ff ). In said Sec. 44 (comment ; 1, pp. 128-9) is listed “words appropriate to express automatic expirations”, which are similar to those above quoted from 18 Cal. Jur. 2d 395. as indicating a deter- . minable éstate as distinguished from a condition sb- sequent. Paragraph V of said comment 1 (p.. 129) is substantially the exact clause contained in the 1898 deed, to-wit: V. “to B and C (trustees of a schgol district) and their heirs and successors? for school purposes and to revert to the grantor when it ceases to be so_used”’, But, even if a condition subsequent, appellant is en- fitled to compensation under the facts of this case. For? a8 held in Firth v. Los Angeles Pacific Land Co., 28 Cal. App. 399, under the provisions of Section, 1109 ° of the California Civil Code, a formal re-entry upon cthe land in the case of a condition subsequent is not necessary, and “determination of the grantor to take ad- i | —17—" vantage of the condition broken. . would also be well manifested by the bringing of an action ge have de- clared the estate of the grantee termifa ay There- fore, appellant's Supplemental Answer IC. T. pp. 93- 96] constitutes the demand provided for in said section 1109 of the Civil Code, Furthermore. City, appellee Was Dut on notice of the nature of appellant's demand by his answer? [C. T. pp. 24-00] and especially by ap- pellant’s motion for leave to file cross-complaint «. TF. pp. 153-164], which latter was served on City appellee | on January 19, 1959, and which asserted appellant's fee title by reversion [par. XIV, C. T. p. 159]. As we have shown above (Point Il, par. 1), the provisions for reversion in the 1898 deed (which merges the 1897 deed) are controlling, | The appellate court's opinion (.\ppendix pp.* 183] ) disregards the essential point that the reversion occurred before the plaintiff-appellee acquired tifle by eminent domain 4g therefore the reyersioner was entitled to compensation. As held in People v, Peninsula Title Gmaranty Co., 47 Cal. 2d 29, title does not pass to the condemnor until entry of the final judgment and pay- ment of -epipensation, See also : ; - Galif. Code Civ. Proc. Sec. 1253: City of Long Beach v. Aistrup- 164 Cal. App. Ft a Lay Altos School District ~.. Watson. 133 Cal. Russakov vv. Mc urthy Co., 206: Cal. OR2. The facts .of this ca distinguish it from the Cases cited in state appellee's Hrief (pp. 6-7). Here the tak- } {> ing in eminent domain ‘became effective upon taking of possession and the construction of the freeway was com- plete before trial, and the- acts of City appellee in as- sisting and consenting to said condemnation constituted an abandonment by the City-of that portion of the park taken for the treeway, and all this occurred before the trial and before plaintiff appellee acquired title by final judgment and payment %/ compensation. These dif- fering facts place this case in the cktss of those cases which have awarded compensation to a reversioner upon the taking in eminent domain. namely ; Romero v. Department of Public WSs 17 Cal. 2d 189, which is distinGuishec in Santa Moni--- ca v. Jones, 104 Cal. App. 2d 463: | United States v. 2184.81 Acres of Land, 44 Fed. Supp. 68!: Harris v. Elliott, ym Pet. (U. §.) 25, 55 et seq.; In re Opening and Extending. of North Con- duit Avenue, 202 App. Div. 70. 27 N.Y. S. 2d 841, which distinguishes First Reformed Dutch Church v, ¢ rosswell, 206 N. Y. S. 132 (cited by state appellee, pp, 6-7); Porter v. International Bridgé Co., 206 N. Y. 234; | James v. Gulf Refining Co, 206 Miss, 781: Lancaster School District: v. Lancaster County, 205 Pa. 112. Appellees contend that the clause in the 1808 deed making ap exception “for the use of.any part of said al . = = premises for transportation purposes, for carr¥ing in- habitants of the City into and through said park” as authority and permission to take approximately 200 acres : of the park for state ireeway purposes, and the appel- late court says this “use appears to be one excepted under fhe deed.” But. as said by the Court jn Grif- fith v, Department of Public U ‘orks, 141 Cal. App. 2d 376: “It ts difficult to believe that the Griffith donors ever intended that this provision should be inte?- preted as furnishing authority for construction of a public, high-speed freeway which would remove 206 acres of land from the original park, purpose.” Only appellant offered testimony on this issue. Appel- lant (the donors’ son) testified about the efforts of his father to maintain bus lines and street railway service to and from the. park [R. T.-p. 344. lines 12-21]. Mrs. Harold Morton, president of eu Board of Recreation, and Park Commissioners testified that said Board strenuously opposed. the taking of | the park lands for € state freeway project [R. T. pp. 2§2-235: and Exs. G-A, G-B, G-C, G-D, G-E, G-F. G-H, G-I, G-J, and G-E], that the consiruction destroyed park facilities in the area taken for the freeway [R. T. pp. 268-281], that the Board had to purchase other land to replace that taken [R. T. p. 329, lines 16-22], and that Riverside Drive taken and appropriated for the freeway had pro- vided adequate roadway facilities for access to the park [Ex. G-B; R. T. p. 232, lines 9-16). lo ) — = : California cases have uniformly held that use of park land for a street is not a use for park purposes: Olmstead v. C ity of San Diego, 124 Cal. App. 14; - * Hajl v. Fairchild, .66 Cal. App. 615, 621 et-seg.; Mulvey v. Wangemheim, 23 Cal. App. 268, 272; Griffith v. Department of Public Works, 141 Cal. App. 2d 376. . ; “The terms of such a grant should be Stricily * construed.” ° Griffith v. Department of Public Works, supra. “It is well settled where a grant deed is for a specified, limited aud definite purpose, the sub- ject of the grant cannot be used for another ard different purpdse.” | Roberts v. City of Palos Verdes Estates, 93 Cal. App. 2d 545, 547, . ier It is obvious that the donors meant by’ this transporta- tion clause to provifte for transportation, into and through ‘the park to make it accessible to the City’s ‘inhabitants, and not that land should be taken from the park and diverted to other and inconsistent uses such as that for the Golden, State Freeway. It is certainly straining and Stretching the terms of the grant and dedication of Griffith Park to read into them~the~intent that said park land by virtue of said transportation clause was meant to provide for the whol- ly inconsistent and different use of a major state high- way and freeway. _ 7 _— .. = VI. ) . This Taking Is in Violation of the Due Process _ Clause of the Fourteenth Amendment of the United States Constitiition. . Appellee: City admits that appeilant duly raises the federal question that “The taking of Griffith Park Jands for state freeway purposes violates the due process clause of the 14th Amendment to.the United States Constitu. tion.” (P. il of its brief and Motion). 8 Appellant's Statement of Jurisdiction sets four grounds upon which he claims he. has been denied due process of law, to-wit: (a) *by daial of leave to file cross-complaint (see subdivision 2 of Point I] above) which was passed upon’ by the District Court of Appeal ( Appendix opinion, pp. 8-9). By denial of leave to file cross-complaint appel- ‘ lant was denied right to contest title with City appellee. >. (b) by the arbitrary and ultra vires action of the California Highway Commission and the Department of Public Works. appellant was denied due process of law. This ground was pleaded in. defendant appellant's original answer [par. VIII, C. T. p. 31; par. X, C.-T. p. 33; par. XI, C. T. p. 34; par. XIII, C. T. p. 37]. This ground was also pleaded. in the cross-complaint he Was not given'leave to file [par. VIII, C. T p. 156; par. IX, C. T. pp. 156-7]. Appellant assigned as error the exclusion of evidence thereof (Point XVIII. of AOB, pp. 35-39), and as violation of the due process clause of the 14th Amendment (AOB, Point XX. pp. 38-39) ; and the appellate court passed on this question ( Appendix \ / —22— opinion, pp. 9-10). This has been he'd ground of nial of due process of law: a . Davidson v. New Orleans, 96 U. S. 97, 108; Washington ex rel. O. R. & N. Co. v. Fair- child, 224 U. S. 510, 523 et seq. >) (c) by taking for -state highway public park lands of ‘defendant City appellee not in coniormity with the . procedural requirements of section 1240 of the Cali- fornia Code of Civil "-ocedure -as to eminent domain proceedings. This ground was assigned as error (AOB, Point 1, pp. 15-16) and as in violation of the. 14th Amendment (AOB, Point XX, pp. 38-30); and the Dis- trict Court of Appeal passed upon it (A pendix Opinion, ~ p. 5). pra follow procedural requirements is de nial of due prodss. . : Marin County Water Co. v. Marin County, 145 Cal. 586. _ 4 (d) by exclusién of evidence of = of land taken. See subdivision 3 of Point II, supra. \This ground was passed upon by the appellate Court ( Apoendix opinion, -p. 19). It constitutes denial of due process. Olson v. United States, 292 U. 8.246, 250. | (e) Compensation is also an element of due process. Delaware, L. & W. R: Co. u> Town of, Morris- town, 276 U. S. 182, 190, 193, See Point V, supra, for the manner in which this ground "was raised and ‘passed upon. Denial of due process ‘of law to appellant on these . “@ several grounds has bearing upon the other federal ques-. tions raised by. appellant in that it has »>revented due consideration of his rights: ‘4s reversioner and a fair trial of the issues in this Case. g ¥ —23— VII. 7 Said Taking Constitutes dmpairment of the Obli- gation of the Contract of Gift as Resting Upon Subsequent Legislation Prohibited by Section 10 of Article I of the Constitution of the, ‘oe States. : City appellee admits that appellant hag dyly raised a federal question that “The enactment. of section 103.5 Lg the Streets and Highways Code and the adoption by the State Highway Commission of a resolution author- - izing, the condemnation of Griffith Park lands for a _ State fre-way impairs the obligation of a contract in violation of Article 1, section 10 of the United. States Constitution.” (Its. Motion, p. 11.) And also that-the . District Court of Appeal passed upon the question ( |ts Motion, pp. 11-13). The cases cited by appellees are not ir point here, because the record discloses that not only was the: federal question presented to the highest court, but also it is necessarily involved im the decision. Appellant's Opening Brief is a part of the record be- cause in California. practice it presents the assignments of error (Appendix opinien, p. 3). As we have shown in points III ands 1V above. in this case and passim, the fact that the opinion of the District Court,of Appeal has not specifically stated that the constit Metial ques- tion involved is a federal question is inpritiferial. As to the instant federal question of impairment of contract, the opinion of the District Court of Appeal (Appendix, pp. 16-17) evades and misstates the point of appellant's assignment of error. It is’ that the taking under the supposed authority of séction 103.5 of the Streets and Highways Code authorizing the resolution of the State Highway Commission and Resolution No. 2859 and Ordinance No. 107485, all of which are state _ ~ » - antes statutes. passed subsequent to the gift of the park land made inyiolate by the City \Charter (section, 113) in force at the time of the grant and by the California Constitution (section & of Article XI) not repeaiable by any act Ast" the? state legislature, constitutes impair- ment of a/contract prohibited by section 10 of Article I of the Knited States Constitution, (Jurisdictional State- ment, war. II], pp. 5-6; par. 2, p. 7; par. (c), p. 9; Pp. 42; par. 3, pp. 14-15; pp. 15-16, as to statutes in- volved; and par. 2, p. 17). The cases cited in the appellate court’s opinion (Ap- pendix, p. 17) and by appellees (state's Motion, p. 9) are distinguishable in fact and not applicable in principle to this case. They merely hold that the State cannot by \ the states the power of eminent domain. That is not the issue flere, : The authorities cited do not hold, and it is no. the Jaw, that there is no limitation upon the power of emin- ent domain. County of Marin v. Superior Court, 53 A. C. 638, 2 Cal. Rep. 758, The issue here as to taking of the park land has two phases: first, as to the contract obligations of the City which is not the condemnor; and second, the constity- tional and statutory limitations upon the State in the taking of park of the City of Los Angeles already ap- propriated to a public use. Appellant contends that thé consent of the City is es- sential and precedent to the right of the State to take the park land which was already appropriated to a pub- lic use inconsistent with use for a state freeway. And : —25— td the City’s consent thereto is subject to thé contract and the prohibition of the City Charter. In giving its con- sent and acquiescing to the taking of the park for the freeway in this case, the City appellee acted without authority, breached its trust and impaired the contract and caused*a reversion to appellant. By upholding the validity’ of the City’s’ unlawful act. by ordinance and resolution (Appendix, pp. 7-8), a federal question js necessarily involved which has been duly raised by appel- lant. ; | On the other harid, the power of eminent domain is limited by the California Constitution (section 13 of Article XI) which prohibits delegation of power to a special commission (such as is the California Highway Commissiort) to take property of a municipality. As in- terpreted Ly the District Court of Appeal said section 103.5 is a valid delegation of power to the State High- way Commission to,take City property. ( Appendix, pp. 4-8). As we will next show, this involves not only the question of the delegation of legislative power to a state agency (Griffith v. Department of Public Works, 14] Cal. App. 2d 376), but alse the question of the impair- ment of a contract which in this case is constitutionally inviolate. : 2, The Charter of a city under the California Constitu- tion (Section 8 of Article XI) cannot be repealed, al- tered or amended by any act of the state legislature without the consent of the municipal electorate as there prescribed. Section 113 of the City Charter is a part of the terms of the contract of gift of Griffith Park and forbids diversion of such a dedicated park’ from the purposes dedicated. By the terms of the grant any change of use immediately effects reversion. As we have shown, the act of taking these park lands by the Cali- e 4 fornia- Highway Commiission and Department of Public Works is ultra vires and an itypairment of said contract. The decision of the District Court of Appeal upholding the validity of the said legislative acts of appellees ~ constitutes those acts impairment of the contract, and this is a federal question involved in “the other federal question of right to compensation raised by appellant. Conclusions. a he cases cited by City appellee’s.Moton on page 13 are entirely irrelevant to thié appeal. For the federal questions raised here are neither frivolous, false, insuf- ficiently raised, nor determinable on non-federal grounds, as in those cases, and they are either expressly or im- pliedly and necessdrly involved in the questions passed upon by the decision of the California District Court, of Appeal. The issue now presented by the motions to dismiss is merely whether a federal question is presented. There- fore, we have not attempted to argue fully the merits of the case. We think we have proved that the federal questions have been suf ficiently raised by appellant and passed upon by the state court. and that the motions to dismiss should be denied. Respectfully submitted, “J. B. Trerz, Attorney for A ppellant. ARTHUR E. Briccs, Of Counsel. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0040%3A5. Public record. Not legal advice.