I concur in the judgment against Hubert F. Call, but I cannot agree that the corporate defendant is free of liability. The evidence is clearly to the contrary.
The trial court observed in its memorandum decision: “IGC does appear to have been guilty of one breach of its agreement. . . [with the City] .... Though IGC was motivated solely by a desire to obtain a building permit and to protect its development, ... it recognized that the City . . . was interested in making a public park at the top of the hill. IGC therefore used that as its inducement to the City as, for example, in the letter of November 3, 1972 offering ‘to make a major effort to preserve the Albany Hill top for public use,’ and promising the City ‘a unique, superb and useful view park for the public enjoyment.’ The sales agreement with Call . . . called for title free and clear of all liens, encumbrances, easements, et cetera. Notwithstanding this, . . . IGC consented to a demand of Call . . . that title be taken subject to ... an unrestricted easement of access by the Albany Lions Club to and for maintenance of . . . [the] . . . cross which had been erected on the Call property.
“The President ... of IGC [Wilson] testified that Call was allowed to impose the burden of the easement because IGC didn’t care what restrictions might be placed upon the property as long as they did not constitute a potential threat to the development of IGC’s property. . . . Allowing the *654property to be so encumbered can hardly be said to be consistent with ‘a major effort to save and preserve the Albany Hill top for public use,’ given the legal and practical complications thus entailed.”
The IGC contract with the city obligated it to convey fair value to the city in the form of land suitable for use as a public park. The 1.1-acre parcel it acquired from the Calls and conveyed to the city, through Cebert, represents less than fair value because of the extent to which its worth has been diminished by the cross and the easement. The easement protects the location and existence of the cross, which renders the land unsuitable for use as a park because of the constitutional proscriptions precluding the display of a religious symbol on public property. (Fox v. City of Los Angeles (1978) 22 Cal.3d 792, 797 [150 Cal.Rptr. 867, 587 P.2d 663].)
It was IGC that allowed the land to be burdened with the easement before conveying the land to the city pursuant to the contract, although it should have been obvious that the easement negated the city’s purpose in acquisition. The trial court recognized that result in its memorandum decision: “With the cross and unrestricted easement on the property . . . the property was virtually undevelopable and therefore of virtually no commercial value.” And, of course, the perpetual religious symbol rendered the property legally unsuitable for park or other public purposes. Nevertheless the court exonerated the corporation of liability to the city under the state of the pleadings; a separate lawsuit was suggested as a remedy for the city.
That result allows IGC to escape liability in this proceeding by an unduly narrow interpretation of the complaint. As the Court of Appeal held, deferment to future litigation rather than adjudication of liability in this action is neither in the public interest nor serves judicial economy. I would direct, as did the Court of Appeal, that on remand the plaintiffs should be permitted to amend their complaint to seek appropriate damages against IGC for breach of contract. Recovery would appear to be certain, with only the amount of damages to be determined.
Bird, C. J., concurred.
The petition of defendants and appellants for a rehearing was denied July 29, 1985, and the opinion was modified to read as printed above.