I dissent.
Whenever an illustration of the voracious appetite of acquisitive government is desired, the action of the public agency here will serve well as Exhibit A.
To state the facts is to decide the case. Needing slightly more than a half acre for a public use (65/100 of an acre, to be precise), this governmental department seeks to take 54.03 acres of private property which it does not need and cannot use. Its avowed purpose is to speculate on resale to a private purchaser.
No further discussion should be required to decide that the proposed condemnation is improper. Yet the agency advances a strange latter-day economics theory that taking more costs less, and cites as authority Streets and Highways Code section 104.1. If the section purports to grant any such power to the state, it is clearly in conflict with article I, section 14, of the *217California Constitution, which provides that “Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for, the owner. ...” (Italics added.) Clearly no public use is involved in the taking of the 54 acres, for the land is admittedly more than 83 times in excess of that actually required for highway purposes.
Section 104.1, upon which the state relies, provides that “Wherever a part of a parcel of land is to be taken for state highway purposes and the remainder is to be left in such shape or condition as to be of little value to its owner, or to give rise to claims or litigation concerning severance or other damage, the department may acquire the whole parcel and may sell the remainder or may exchange the same for other property needed for state highway purposes. ’ ’
A statute must be given a reasonable interpretation. (People v. Murata (1960) 55 Cal.2d 1, 7 [9 Cal.Rptr. 601, 357 P.2d 833], and cases cited.) It seems clear that when the Legislature adopted the foregoing section referring to “the remainder” after a taking, it contemplated situations in which an insignificant remnant might remain. As a leading authority explains, it is “not an uncommon provision in the statutes relating to the laying out and widening of highways in force in the cities in which such conditions exist that, when part of a parcel of land is taken and the remainder is left in such condition or in such a shape as to be of little value to its owner, the city may take the whole and use or sell what it does not need for the highway, it being felt that it will be less expensive in the end for the city to take and pay for the whole of such lots and either to devote the remnants to municipal purposes, or, by consolidating contiguous remnants, sell them for a fair price, than to engage in protracted litigation over the question of damages to the remaining land with each owner. If the owner consents or if the statute provides merely that he may surrender the whole tract if he chooses, no constitutional objections can arise, for such a proceeding doubtless tends to save the public money; but, if the owner insists upon keeping what is left of his land, grave constitutional difficulties would be encountered if it was attempted to compel him to part with it. Construing such a statute as limited in its application to trifling and almost negligible remnants which would be unsuitable for private use after the part actually *218needed for public use had been appropriated, it would probably be sustained in some jurisdictions at least as authorizing a taking for a purpose reasonably incidental to the laying out of public ways. However, if the proposed taking savored at all of a municipal land speculation, no court would hesitate to hold it unconstitutional.” (Italics added; footnotes omitted.) (2 Nichols on Eminent Domain (3d ed. 1963) § 7.5122(1), pp. 718-719.)
Such a "trifling and almost negligible remnant” could result, for example, from a taking of 54 acres leaving an irregular half-acre residue; but to reverse that ratio, and deem 54 acres to be the remainder of a half acre, is truly a ease of the tail wagging the dog.
The majority concede that the parcel of 54 acres here is not a physical remnant. That should end the lawsuit. But then they advance a novel theory, neither urged by the parties nor supported by authority, that "remnant” refers not only to geography but also to value.
If so, an inevitable query follows: "Value to whom?” Section 104.1 makes it crystal clear that the criterion is not value to the state, as the majority erroneously assume; to justify taking, the remainder must be "of little value to its owner.” By his resistance the owner here demonstrates that to him there is more than "little value” in the 54 acres. Even if the owner did not so contend, however, the court may take judicial notice that in the context of California’s current population explosion, no 54-acre parcel in the state is without ascendant value. In the case at bench the purported "little value” of the 54 acres is attributed to the resultant landlocked condition of the property. Without deciding whether any property need remain totally inaccessible, property in a landlocked condition may readily become marketably valuable merely by acquisition of an easement for access, or by annexation of or to adjacent property.
The second clause of section 104.1 suggests that the excess taking must provide a benefit to the state. Without pursuing the dubious constitutional aspect of that overly broad provision, in this instance its application is fallacious: so long as just compensation for the taking must be paid, by condemning over 83 times more property than it needs, a fortiori the state is paying more than it must necessarily pay.
The theory of the agency is that by taking the land not required for public use, assertedly of little value, it will *219recoup by resale.1 But there is no repeal of the basic laws of the marketplace when the state becomes a vendor. If the land is truly of little value, the state will obtain little return by way of sale. Thus, there is no significant benefit to the state, as required by the statute, in depriving the owner of his property.
Nevertheless, the majority insist that “The entire parcel can probably be condemned for little more than the cost of taking the part needed for the highway and paying damages for the remainder. It is sound economy for the state to take the entire parcel to minimize ultimate costs,” and again later, the majority stress “that the economic benefit to the state must be clear. ’' While as indicated above, I doubt there is clear economic benefit to the state from this excessive taking, fundamentally I find the concept of economy, rather than public use or public purpose,2 to be a unique and unsupportable rationalization to justify the seizure of an individual’s private property.3 The state relies heavily on United States ex rel. T.V.A. v. Welch (1945 ) 327 U.S. 546 [90 L.Ed. 843, 66 S.Ct. 715], in which 6,000 acres beyond that needed for dam purposes were taken, and the court there referred to “a common sense adjustment.” Factually, however, the case offers no guidance to us, for the excess land was not resold but was adapted to public recreational purposes, authority for which was specifically provided in the T.V.A. act.
What constitutes a public use is basically a question of fact. In Linggi v. Garovotti (1955) 45 Cal.2d 20, 24 [286 P.2d 15], *220this court approved the rule: "whether, in any individual ease, the use is a public use must be determined by the judiciary from the facts and circumstances of that case.” Here the trial court, after hearing evidence and reviewing the facts, found that the proposed acquisition was not related to any public use and was therefore constitutionally impermissible. The state does not complain of an abuse of discretion, or, indeed, of erroneous conclusions by the trial court; it merely maintains that no court has the power to review its reliance on section 104.1. To the contrary, however, this court held in People v. Chevalier (1959) 52 Cal.2d 299, 304 [340 P.2d 598], that the issue of public use is justiciable in eminent domain proceedings.
Section 104.1, as interpreted by the state, would lack any definitive standards and thus clearly do violence to the constitutional requirement of due process. The trial court noted in its memorandum opinion that the state’s right-of-way agent, as a witness, gave as his opinion under the provisions of section 104.1 "the state would have a right to take as much as one thousand acres of private property, even though it was not for a public use.” If a thousand acres, why not 6,000 acres as in Welch, or 10,000 or 100,000 acres? If there is any limitation whatever on the amount of land the state may take, without intent to devote it to a public use, neither section 104.1 nor the majority opinion suggests the boundaries. Government’s cavalier treatment of private property rights, abjectly approved by the majority, evokes apprehension that Big Brother may have arrived 16 years before 1984.
Amici curiae have complained that the power of the Department of Public Works to condemn any excess property without limitation becomes a potent weapon to be used against prospective condemnees who refuse to sell at the price offered by the department. Right-of-way agents, it is indicated, demand acquiescence in sale of the desired part of the land at the proffered price with a threat of a punitive taking of all the owner’s property. This could be disregarded as a fanciful fear were it not for the state agency’s petition for writ of mandate, which candidly admits that denial of the right of excess condemnation "will also have important and substantial side effects upon the heretofore successful policy of petitioner in negotiating the settlement of land acquisitions.” We cannot be oblivious to the "tremendous power in government” and the need for "a growing sensitivity to the protection of the individual in his relation with govern*221ment,” as Justice Tobriner has written. (Tobriner, Individual Rights in an Industrialized Society (1968) 54 A.B.A.J. 21,22.)
The majority finally propose this doctrine: “the question of public use turns on a determination of whether the taking is justified to avoid excessive severance or consequential damages. ” This concept is completely wrong. It ignores the key word: use.
Condemnation is not a necessary antidote for excessive damages, since the law has always been clear that excessive damages are indefensible in any ease and under all circumstances, and a ready remedy by trial and appellate courts is available. (Code Civ. Proc., § 657, subds. 5 and 6; Koyer v. McComber (1938) 12 Cal.2d 175, 182 [82 P.2d 941] [new trial granted] ; Barrett v. Southern Pac. Co. (1929) 207 Cal. 154, 166 [277 P. 481] [reversal on appeal] ; Maede v. Oakland High School Dist. (1931) 212 Cal. 419, 425 [298 P. 987] [reduction on appeal] ; 2 Witkin, Summary of Cal. Law (7th ed. 1960) Torts, § 443, pp. 1636-1637.) Indeed, that the trial judge was well aware of his responsibility is indicated by his written memorandum, noting that if excessive severance damages were awarded, the court would “be remiss in its duty if it did not reduce whatever amount was excessive.” Once the word “excessive” is eliminated from the majority’s rule, we come to the nub of the problem: the state agency proposes no use of the property whatever, but merely seeks to avoid paying any severance or consequential damages even though the law recognizes such damages as being assessable in appropriate cases. (Code Civ. Proc., § 1248, subd. 2; 3 Witkin, Summary of Cal. Law (7th ed. 1960) Constitutional Law, § 236, p. 2046.)
I would substitute for the majority’s rule the following: the question of public use or purpose turns on a factual determination of what the public agency proposes to do with the property after acquisition.
Employing that test, the trial court found as a fact that the property was not being taken for a public use. Since land speculation is clearly not a public use, the trial court was correct. I would therefore affirm the order.
Peters, J., concurred.
The petition of the real parties in interest for a rehearing was denied February 28, 1968. Peters, J., and Mosk, J., were of the opinion that the petition should be granted.
The recoupment theory has been roundly condemned in Nichols (2 Nichols on Eminent Domain (3d ed. 1963) § 7.5122(3), p. 720): “although sanctioned in countries in. which the power of the legislature is not restricted by a written constitution,” recoupment, which “involves the talcing of the property of one person and the sale of it to another for his own private use,” has not been approved in American jurisdictions. (See also In re Opinion of Justices (1910) 204 Mass. 607 [91 N.E. 405, 27 L.R.A. N.S. 483] ; Atwood v. Willacy County Nav. Dist. (Tex. Civ. App. 1954) 271 S.W.2d 137, 141.)
As indicated in Redevelopment Agency v. Hayes (1954) 122 Cal. App.2d 777, 789 [266 P.2d 105], “the more modern courts have enlarged the traditional definition of public use to include ‘ public purpose. ’ ” Thus slum clearance was deemed a public purpose, even though after the taking and demolition of the slums, redevelopment was to be undertaken by private industry.
In Cincinnati v. Vester (6th Cir. 1929) 33 F.2d 242, 245, an Ohio statute authorizing excess condemnation was criticized: “If it means . . . that the property may be taken for the purpose of selling it at a profit and paying for the improvement, it is clearly invalid. . . . [I]t violates the due process clause of the Constitution.” (Affd. in 281 U.S. 439, with the United States Supreme Court refraining from an opinion on any subject other than compliance -with the statute.)