I concur in the judgment.
The result of the court’s effort to reconcile Los Angeles v. Allen (1934) 1 Cal.2d 572 [36 P.2d 611] with People v. Silveira (1965) 236 Cal.App.2d 604 [46 Cal.Rptr. 260] is that when the land taken has a higher unit value than the remainder of the parcel, the landowner is entitled to an award based upon the higher value if the land taken can be sold as a distinct piece of property for a price based upon the higher value, but the landowner is not entitled to an award based upon the higher value if, because of the size or shape of the land taken, the property taken cannot be sold as a distinct piece of property for a price based upon the higher value. I think that such a rule is unfair and that it is not compelled for the reason that Allen no longer has vitality.
The Supreme Court in L.A. County Flood etc. Dist. v. McNulty (1963) 59 Cal.2d 333 [29 Cal.Rptr. 13, 379 P.2d 493] held that “it is not proper to attribute a per-square-foot value to defendants’ entire property and then apply the value to the parcel condemned unless each square foot of defendants’ land has the same value and that, if the parcel condemned is different in quality from the rest of the land, it should be assigned a different value.” There was no limitation confining this rule to a case where the taken property can be sold as a distinct piece of property for a price based upon the higher value. I think that Allen was impliedly overruled.
In its petition for rehearing, the condemner asserts that since 1954 it has conceded that a condemnee is entitled to an award based upon the *381unit value of the property taken when that property is part of an area having a higher unit value than the balance of the entire property of the condemnee, even though the property taken is of such size or shape that it cannot be sold in the open market for the amount of the award. I agree with the condemner that the court’s decision “will be unjust to property owners in situations where small unusable areas are taken.”
Suppose that a landowner owns highway frontage of 100 feet with a depth of 500 feet. To a depth of 200 feet the property is usable for commercial purposes and is worth $10 a square foot. The remainder is best suited for residential purposes and is worth $1 per square foot. The entire parcel is worth $230,000 or an average of $4.60 a square foot. To widen a street, a condemner seeks a depth of 2 feet or 200 square feet. The remaining commercial property to a depth of 198 feet retains its value of $10 a square foot so there is no severance damage. The narrow strip being taken would not be saleable on the open market. If by reason of that fact the landowner is entitled to only $920 ($4.60 per square foot), he is left with property of a value of $228,000 and has lost $1,080. Only if he receives $2,000 ($10 per square foot for land worth $10 per square foot) will he be made whole. If the landowner owned only the commercial property and not the residential property, he would unquestionably be entitled to $2,000. The fact that he happens to own the residential property should not penalize him.
A petition for a rehearing was denied January 6, 1971, and the opinion was modified to read as printed above. Respondent’s petition for a hearing by the Supreme Court was denied February 3, 1971.