
    RESTLAND MEMORIAL PARK, A NONPROFIT CORPORATION v. THE UNITED STATES
    [No. 50257.
    Decided June 5, 1956.
    Plaintiff’s motion for rehearing and to alter and amend judgment overruled October 2, 1956]
    
      
      Mr. Robert A. Keller for the plaintiff. Mr. William D. Oamnpbell was on the brief.
    
      Mr. Herbert Pittle, with, whom was Mr. Assistant Attorney General Perry W. Morton, for the defendant.
   Jones, Ohief Judge,

delivered the opinion of the court:

Plaintiff sues for compensation for the alleged temporary taking of all or a part of a cemetery known as Restland Memorial Park located in Los Angeles County, California.

The time involved is from April 1,1942, to June 80,1946.

The plaintiff claims that the defendant used the portion of the premises actually occupied in such a way as to deprive the plaintiff of the normal use of the remainder, and therefore in effect requisitioned the entire cemetery.

It is the defendant’s position that it took only a very small portion of the cemetery and adequately compensated plaintiff for a part of that which was taken.

In the year 1928 a part of the tract involved known as Unit No. 1 was dedicated under the Health and Safety Code of the State of California and the laws of the city of Burbank to be held, occupied, and used exclusively for cemetery purposes, and in September 1938 Unit No. 2 was added in the same fashion. The total area included in the cemetery was 13.1945 acres.

The premises were first dedicated for the purposes indicated by Aimee Semple McPherson with the title Blessed Hope Memorial Park. It met with financial difficulties and was involved in bankruptcy proceedings.

On the south and west sides of the cemetery in question was another cemetery called Valhalla, which covered a large area, which had been in operation for years. On the north side of the property involved was a railroad freight line just across a boulevard. Immediately beyond the railroad is the location of the Lockheed Air Terminal and Aircraft Manufacturing Plant which occupies an area of about one square mile. On account of the railroad and the operations of the Aircraft Plant the neighborhood is noisy and there is considerable traffic nearby.

These facts were undoubtedly known to the people who formed the plaintiff corporation which was organized in 1941 to acquire and operate the premises for cemetery purposes. When the plaintiff corporation acquired the premises in October 1941 the eastern portion described as Unit No. 1, had been sodded and contained small bronze markers scattered over the area by which it was possible to locate various graves. On Unit No. 1 there was also located a crematorium-office building. The western portion, or Unit No. 2, was not in sod and in that unit no burials had taken place.

At the time plaintiff acquired the premises there were outstanding a number of contracts for the sale of grave sites to private persons. Each contract provided for the sale of a block of six sites, the price of each, block being $200. The purchasers under these contracts were in arrears in 1941 and since the plaintiff had succeeded to the rights and obligations of its predecessor it collected small sums from time to time which it applied to the purchase price. In its continuing operations the plaintiff’s practice was to sell grave sites directly to morticians for immediate use. The record does not show that any grave sites were sold after plaintiff acquired the property and before the Government entered a portion of the premises.

On April 1, 1942, the defendant took for public use a portion of the western end of Unit No. 2, the amount taken being 100 by 200 feet, with access thereto from the boulevard on the north. The purpose of the taking was to provide a site for antiaircraft gun emplacements and appurtenances of a temporary nature.

On July 1, 1942, the plaintiff gave the defendant permission to use the entire premises for camouflage purposes. Pursuant to that permit the Army disked or harrowed the entire premises and refrained from watering them in order that the premises would not be visible to a possible enemy as a green spot adjacent to an important aircraft factory.

On November 20, 1942, an order was entered in a case in the United States District Court for the Southern District of California, awarding to the United States the right to immediate possession of a portion of the premises consisting of 10,000 square feet, together with ingress and egress privileges, and a short time thereafter an amended complaint was filed covering an additional 10,000 square feet, and an order was signed by the District judge granting immediate possession of an additional 10,000 square feet, the total amount covered by the two orders being .46 of an acre. Following these orders a proceeding was had in the District Court and a decree signed vesting in the United States the right of use and occupancy for a term of years in .46 of an acre.

In a jury trial the fair rental value of the premises was found to be $483.33, as full compensation for the term November 20,1942 to June 30,1944. In addition the sum of $966.66 was found to represent the amount by which the remainder of the premises had been damaged by reason of the severance for the period in question.

By the terms of the decree the rental period was extended at the option of the United States for yearly periods thereafter during the existing national emergency. The amount awarded as just compensation for the area thus taken was paid in full not only for the period named in the decree, but also for the extended period to June 30,1946, additional compensation for the extended term being paid on the same basis.

While in possession of the tract of .46 of an acre the defendant constructed a barracks building, a latrine building and some excavations for gun emplacements on the tract. The damaged portions of the redwood curbing along the driveways cost $640 to replace, which sum has not been paid by the defendant.

On a number of items of damages the proof is rather vague and uncertain. It is therefore difficult in some instances to tell whether plaintiff is entitled to recover, and in other instances as to the amount of damages. The evidence shows that two barriers were erected along the old driveway near the southeast corner of the property, but it does not establish whether they were erected by the defendant as a security measure, or whether by the plaintiff to keep unauthorized persons from entering other portions of the premises from the roadway. At any rate, the evidence does not indicate that there was any objection on the part of the plaintiff to the barricade.

In addition to the buildings erected on the .46 of an acre tract the defendant erected a small wooden building about 6 by 6 feet, and a tent on another portion of the premises. The tent was removed a short time after it had been so placed. The evidence is not at all clear as to how much additional property was thus actually used. However, the defendant has admitted that it did occupy an additional 1.371 acres.

While the defendant was in possession of the area in question, the City Council of the city of Burbank, on June 8, 1943, approved an application by the plaintiff to be authorized to use the westerly 800 feet of the premises for automobile parking for the duration of the war, notwithstanding the property had been zoned exclusively for cemetery purposes. The plaintiff devoted the area, comprising approximately two acres, to parking purposes, and received income from parked automobiles, the amount of which the record does not disclose.

At the expiration of the term of use by the defendant the plaintiff submitted to the Department of the Army a claim for restoration. A number of items were included in the claim, these items being set out in finding 19. A judgment was entered based upon a stipulation by the counsel for the plaintiff and the defendant and a judgment for damages in lieu of restoration was entered and paid in full by the United States.

In the present action the plaintiff seeks to recover (a) rent for the remainder of the 13.1945 acres not included in the original condemnation proceedings,; (b) damages for failure to restore the premises; (c) loss of purchase contracts for grave sites; and (d) loss of profits from the crematorium.

The evidence is very clear that defendant did not use, occupy or prevent plaintiff from entering upon the remainder of the premises except to the extent indicated. The evidence, however, does establish that the defendant used or occupied a small but undetermined portion of the premises in addition to the .46 of an acre. The evidence does not show how long this additional tract was used but the defendant has admitted that it did occupy the additional 1.371 acres from November 20,1942 to June 30,1946. It has also admitted the use of the .46 of an acre from April 1, 1942 to November 20,1942, for which period the plaintiff has not been compensated. ■

The stipulation and judgment for damages as set out in finding 19 discloses that plaintiff was reimbursed for damages to such items as roadways and concrete curbing, and for the cost of removing installations, filling and leveling. The disking of the sodded and green area did not permanently injure the premises, because by merely applying water grass promptly reappeared.

The record does not show how many of the outstanding gravesite-purchase contracts which had been executed before plaintiff secured the premises and to which it succeeded to both rights and obligations, were reinstated or how much of the payment may have been collected, nor how much was due on such contracts. The crematorium was not operated during the period 1942 to 1946, but that was because there was no business to justify operation. In fact, it is not clear from the evidence just what the operation of this particular facility had been prior to the time the defendant took possession.

In the state of the record we think plaintiff is entitled to recover $640, the cost of replacing the redwood curbing; we also approve the finding of the trial commissioner who heard the evidence, that the fair rental value of the 1.371 acres for the period November 20, 1942 to June 30, 1946, was $445.58; also, on the basis for which plaintiff had been compensated for the .46 of an acre the value of the use by defendant of this tract from April 1, 1942, to November 19, 1942, was $191.67; and $383.33, being the amount of the severance damage for that period, a total of $1,660.58.

Judgment will be entered for the plaintiff in the sum of $1,660.58, with interest as a part of just compensation, at the rate of 4 percent per annum from the dates specified to the date of payment, as follows:

$640, interest from June 30,1946
$575, interest from April 1,1942
$445.58, interest from March 22,1944.

The last date specified was used for the purpose of averaging the interest during the period of occupancy of 1.371 acres.

It is so ordered.

Laramore, Judge; Madden, Judge; Whitaker, Judge; and Littleton, Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner William E. Day, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff, Restland Memorial Park, is a corporation organized in 1941 under the laws of the State of California, with its principal place of business in Burbank, Los Angeles County, California.

2. On August 1, 1928, a portion identified as Unit No. 1, and on September 12, 1938, a portion identified as Unit No. 2, of

Lot 2, tract 8428, as per map recorded in book 117, pages 6 and 7 of Maps, Records of Los Angeles County, California, and a portion of Empire Avenue when vacated, containing 13.1945 acres,

were duly dedicated pursuant to the Health and Safety Code of the State of California and laws of the city of Burbank to be held, occupied, and used exclusively for cemetery purposes.

3. The premises were first designed for cemetery purposes by Aimee Semple McPherson and operated under the name Blessed Hope Memorial Park. That venture met with financial difficulties and became involved in bankruptcy. When the plaintiff acquired the premises they were not actually being operated by or as a going concern.

Another cemetery, Valhalla, is adjacent to the premises on the south and west sides. A railroad freight line is located across Van Owen Boulevard on the north side, and immediately beyond the railroad there is situated the Lockheed Air Terminal and Aircraft Manufacturing Plant, which occupies about a square mile. Because of the trains and aircraft plant and the changing shifts of workers at the plant, the neighborhood is noisy and there is considerable traffic in the morning and afternoon.

4. The plaintiff corporation was organized in 1941 to acquire and operate the premises for cemetery purposes. Since its organization in 1941, the plaintiff has been the owner of the premises described above. In its operation of the cemetery, it is the plaintiff’s practice to sell its gravesites directly to morticians for immediate use and not to do any pre-need selling.

5. In October 1941, about the time the plaintiff acquired the premises, the property was level and the eastern portion, Unit No. 1, had been sodded and contained monuments scattered over the area by which it was possible to locate various graves. The western portion, Unit No. 2, was not in sod, nor had any burials been effected in it. The two units are depicted on plats attached as exhibit A and exhibit B to plaintiff’s petition. In the northeast corner of Unit No. 1 a combined crematorium-office building was located. That area also was the only area in which any burials had been accomplished. The east side of the property on which the crematorium is located contained driveways marked by redwood curbing. The crematorium-office building was in fairly good condition in 1941. A pump was located on the northwest corner of the property next to Van Owen Boulevard and served to supply water. There were no underground sprinklers at that time but the grounds were watered by a hose attached to the pump.

6. In 1941, at the time the plaintiff acquired the premises, it also succeeded to the rights and obligations of its predecessor with respect to a number of contracts for the sale by it to private persons of gravesites. Each contract provided for the sale of a block, that is, one group of six sites, for the sum of $200. However, the purchasers under these contracts were in arrears in 1941, and the plaintiff endeavored to collect small sums from time to time which it applied to the purchase price. This method of partial collection was resorted to in order to reinstate as many contracts as possible. The evidence does not establish the number of contracts which were outstanding.

7. On July 1,1942, the plaintiff executed a Permit Authorizing Camouflage, whereby permission was granted the United States of America the right to use the entire premises for camouflage purposes. Under that permit the Army disked or harrowed the entire premises and refrained from watering them in order that the premises would not be easily visible to a possible enemy as a green spot adjacent to an important aircraft factory.

8. On April 1,1942, the defendant, acting through the War Department, entered upon and took over for public use a portion of the western end of Unit No. 2 of the plaintiff’s premises, 100 by 200 feet, with access thereto from Van Owen Boulevard on the north. The purpose for which the use of the property was taken was to provide a site for antiaircraft gun emplacements and appurtenances of a temporary nature in connection therewith, to furnish protection and defense of the Lockheed Air Terminal and the adjoining airplane factory located directly across Van Owen Boulevard.

9. On November 20, 1942, there was entered in the case entitled United States of America v. 23 Acres of Land, More or Less, in the City of Burbank, County of Los Angeles, State of California; City of Burbank, a Municipal Corporation, etc.; Restland Memorial Park, a Corporation, et al., No. 2586-BH Civil, in the United States District Court for the Southern District of California, an order awarding to the United States the right of immediate possession of a portion of the premises consisting of 10,000 square feet, together with ingress and egress over surrounding property.

The date of the filing of the original complaint by the defendant is not in evidence.

10. Thereafter, on May 27, 1943, an amended complaint was filed in the same action, and on the same day an amended order for immediate possession to .46 of an acre, or 20,000 square feet of the plaintiff’s premises, was signed by the District Judge.

11. A declaration of taking and a second amended complaint was filed in the same District Court on August 31, 1943, covering the same .46 of an acre, more or less, together with a right of ingress and egress over surrounding property. On the same date the District Judge signed a decree adjudging that there vested in the United States the right of use and occupancy for a term of years in the .46 of an acre beginning July 1, 1942, and ending June 30, 1944, with the right to extend the period for additional yearly periods on appropriate notice.

12. On May 1,1944, judgment was entered upon the verdict of the jury in Civil No. 2586. By virtue of the proceedings and judgment in that case, the United States acquired an estate for a term of years which commenced November 20, 1942, and ended June 30, 1944, but which was extendible at the option of the United States for yearly periods thereafter during the then existing national emergency. The actual area so acquired comprised .46 of an acre and the fair market rental value which was found to be just compensation for that portion of the premises was determined to be $483.33 for the term November 20,1942, to June 30,1944. In addition, the sum of $966.66 was found to represent the amount by which the remainder had been damaged by reason of the severance for the period in question.

13. The amount awarded as just compensation for the area acquired in Civil No. 2586 was paid in full by the United States and subsequently the term was extended to June 30, 1946, and compensation for the extended term also was paid in full.

14. The .46 of an acre acquired in Civil No. 2586 was located in the northwestern portion of the section marked “F” in Unit No. 2. It consisted of a rectangular tract 100 by 200 feet and is depicted on plaintiff’s exhibit 2 as an area outlined in red and marked “Army troops.” The premises were acquired for the placement of an automatic gun position manned by Battery A, 543rd CA (AA) of the Army (543rd AAA Group, 37th AAA Brigade, Los Angeles, California). While the Army was in possession of the .46 of an acre, it constructed a barracks building, a latrine building, and some excavations for gun emplacements. It also damaged portions of the redwood curbing along the driveways which cost $640 to replace. Eight soldiers were stationed on the premises.

15. Two barriers were erected along the old driveway near the southeast corner of the property. The evidence does not establish whether the barriers were erected by the defendant as a security measure or whether they were erected by the plaintiff to keep unauthorized persons from entering other portions of the premises from the roadway. Despite the barriers, however, it was possible to enter the premises from the south and from the east. In any event, representatives of the plaintiff never discussed with representatives of the Department of the Army the question of the presence of any barricades and never objected to the barricades.

16. After the Army entered into possession of the .46-acre tract, it erected a small wooden building, about 6 by 6 feet, and a tent on another portion of the premises designated as area G on plaintiff’s exhibit 2. The tent was removed between 1942 and 1944. In 1946, at the time the term acquired in Civil No. 2586 expired, the remains of an excavation in area G indicated that at some time previously thereto the Army also occupied a portion of that area. Although the evidence fails to prove the extent of the additional portion occupied, the defendant has admitted that it did occupy an additional 1.371 acres.

17. While the defendant was in possession of the area acquired in Civil No. 2586, the City Council of the city of Burbank on June 8, 1943, approved a recommendation by the City Planning Commission for a zone variance which had been applied for by the plaintiff and which authorized the use of the westerly 800 feet of lot 2, tract 8428, for automobile parking for the duration of the war, notwithstanding that the property was zoned exclusively for cemetery purposes.

18. That portion of the premises approved for automobile parking is located in area E on plaintiff’s exhibit 2 and directly adjoined on the north the area acquired by the defendant in the condemnation proceeding, Civil No. 2586. The portion of the premises was used exclusively for automobile parking for employees of the neighboring aircraft plant from 1943 until after any period covered by the claim herein.

The area devoted to parking contained approximately two acres, and the plaintiff received income from such parked automobiles, the amount of which is not shown by the record.

19. Upon the expiration of the term acquired by the defendant in Civil No. 2586, the plaintiff submitted to the Department of the Army a claim for restoration. The claim was negotiated and, on June 19,1950, a judgment for damages in lieu of restoration was entered in Civil No. 2586. The judgment was based upon a stipulation entered into between counsel for the plaintiff and the defendant in the condemnation action, and provided in part:

That the following items of restoration are the only items arising out of the use and occupancy of the hereinafter described real property and premises which are the responsibility of plaintiff for, and the only items of which defendant Eestland Memorial Park, a corporation, herein demands restoration, to wit:
1. Remove Gun Pit (H) 9' x 18' — S' deep. Empty Sand Bags, remove lumber and debris, prior to backfilling to match adjacent contours;
2. Remove brick walk and 8" x 12" x 16" concrete building piers (#1) backfill as required;
3. Remove steel drum incinerator pit along with gravel and debris-backfill;
4. Remove concrete mess slab and brick out-of-doors stove and rock walks (#2). Backfill if required;
5. Remove concrete latrine slab 8' x 12' (#2) and underground water and sewer pipe, cesspool to be decontaminated (if found necessary) and backfilled;
6. Remove underground shelters A, B, C, D, E, including timbers, debris, electric wiring, fixtures, pipe, etc., then backfill to natural grade;
7. Remove debris and backfill open pits G and F to natural grade;
8. Remove Gun Pit (I), empty sandbags, remove ammunition boxes, gravel base and metal sump; backfill to match adjacent contours;
9. Replace approximately 550 L. F. of concrete curb 3" wide x 7" deep. NOTE: Letters A, B, C, D, E, F, G, H and I, and figures #1 and #2, refer to items shown on plot plan of Restland Memorial Park— Exhibit “A” hereof.
Broken concrete curbs, crushed rock, gravel areas, debris, and trash to be removed from area and hauled to dump. All backfill to be compacted at least to the density of the undisturbed soil.

20. The judgment for damages in lieu of restoration entered in that case was paid in full by the United States.

21. In the present action the plaintiff seeks to recover (a) rent for all of the remainder of the 13.1945 acres, not including the .46 of an acre involved in Civil No. 2586; (b) damages for failure to restore; (c) for loss of purchase contracts for gravesites, and (d) for loss of profits from the crematorium.

(a) The evidence is clear that the defendant did not use, occupy, or prevent the plaintiff from entering upon all of the remainder of the premises for the entire period 1942 to 1946. The evidence did establish that the defendant used or occupied a small but undetermined portion of the premises in addition to the .46 of an acre. The evidence did not establish the length of time the additional area was so used. However, the defendant has admitted that it did occupy an additional 1.371 acres from November 20,1942, to June 30,1946. The defendant has also admitted that the use by the defendant of the .46 of an acre began on April 1,1942, whereas payment was made on the verdict of the jury in the District Court case for the period beginning November 20, 1942.

(b) The stipulation and judgment for damages in lieu of restoration entered in Civil No. 2586 disclose that the plaintiff was reimbursed for damages to such items as roadways and concrete curbing and for the cost of removing installations, filling and leveling. The disking of the sodded and green area did not permanently injure the premises because by merely applying water, grass promptly reappeared.

(c) Although the plaintiff succeeded to the rights of seller for the outstanding contracts for gravesites, as set forth in finding 6 above, the contracts were in arrears and the evidence did not establish how many contracts were outstanding, how many might have been reinstated prior to defendant’s occupancy, and how many had lapsed. Neither was it shown how much was received in prior payments and how much was due or owing on the contracts. The defendant did not interfere with burials during the period 1942 to 1946, but there were more removals during that time than there were burials.

(d) The defendant did not interfere with the- operation of the crematorium during 1942 to 1946, but that facility was not used by the plaintiff during those years because there was no business.

22. The fair market rental value of the 1.371 acres used by the defendant for the period November 20,1942, to June 30, 1946, was $90 per acre per year, or $123.39 per year for a total of $445.58. This valuation is based upon an appraisal of the fair market value of the entire premises at $1,500 per acre and a fair market rental value of a six percent return on that amount, which results in $90 per acre rental value.

23. For the period from April 1,1942, through November 19, 1942, as to which the plaintiff has not been paid for the use of the .46 of an acre which the defendant by its answer admits, at the rate paid in accordance with the jury verdict for the later period, the value of the use by the defendant was $191.67 and in addition, $383.33, as the amount of the severance damage.

CONCLUSION 03T LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law, that the plaintiff is entitled to recover, and it is therefore adjudged and ordered that it recover of and from the United States the sum of one thousand six hundred sixty dollars and fifty-eight cents ($1.660.58) with interest as a part of just compensation at the rate of 4 percent per an-num from the dates specified to the date of payment, as follows: on $640, from June 30,1946; on $575, from April 1, 1942; and on $445.58, from March 22, 1944.  