Page images

Page Wood v. Truckee etc. Co., 24 Cal. 474, 475........297, 393, 570, 816 Woodman of World v. Rutledge, 133 Cal. 640.

...779, 780 Woodruff v. Howes, 88 Cal. 184...

151, 183, 250 Woodsum v. Cole, 69 Cal. 145.

216, 217 Wooster v. Nevills, 73 Cal. 58.

213 Workman v. S. P. R. R., 129 Cal. 536..

.347, 375, 856 Wright v. C. C. Ry. Co., 78 Cal. 364

181 Wright v. C. W. Co., 67 Cal, 532. .46, 161, 174, 177, 179, 180 Wright v. Oroville etc. Co., 40 Cal. 20.

..144, 151, 152, 201, 255, 256 Wulzen v. Board of Supervisors, 101 Cal. 15...



Yore v. Bankers' etc. Co., 88 Cal. 609

51 Yore v. Superior Court, 108 Cal. 435..

..171, 300, 491, 494, 495, 497, 498, 500 Young v. Iron Co., 4 An. St. Rep. 759.

212 Young v. Rosenbaum, 39 Cal. 646.

.36, 193, 194, 205 Younglove v. Steinman, 80 Cal. 375.. .184, 185, 224, 228, 230 Yule v. Bishop, 133 Cal. 574, 22 Cal. Dec. 255......36, 196, 197, 266

Zellerback v. Allenberg, 99 Cal. 57
Zion M. E, Church v. Hillery, 51 Cal. 155...

.147, 166, 167








14. Eminent domain.


Sec. 14, Art. I. Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court, for the owner, and no right of way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in a court of record, as shall be prescribed by law.

For manner of exercise of right of eminent domain, see sections 1237-1263, Code of Civil Procedure.

Legislative History.

Section 8 of article I of the Constitution of 1849 contained only the following provision as to the exercise of the right of eminent domain: “Nor shall private property be taken for public use with

Corporation Laws-1

out just compensation.” As the clause now stands, private property cannot be taken nor damaged for public use without just compensation having been first made as prescribed.

Section Cited.

Reardon v. San Francisco, 66 Cal. 501, 56 Am. Rep. 109, 6 Pac. 317; Pacific Coast R. R. Co. v. Porter, 74 Cal. 262, 15 Pae. 774; Moran v. Ross, 79 Cal. 551, 21 Pac. 958; Pacific R. R. Co. v. Wade, 91 Cal. 456, 25 Am. St. Rep. 201, 27 Pac. 768; San Bernardino etc. K. R. Co. v. Haven, 94 Cal. 492, 29 Pac. 875; S. V. W. W. v. Drinkhouse, .95 Cal. 223, 30 Pac. 218; Eachus v. Los Angeles etc. Ry. Co., 103 Cal. 616, 42 Am. St. Rep. 149, 37 Paç. 750; De Baker v. Railway Co., 106 Cal. 284, 46 Am. St. Rep. 237, 39 Pac. 610; San Diego Water Co. v. San Diego, 118 Cal. 572, 62 Am. St. Rep. 261, 50 Pac. 633; Nickey v. Stearns Ranchos Co., 126 Cal. 153, 58 Pac. 459; County of San Mateo v. Coburn, 130 Cal. 634, 63 Pac. 78, 621; Steinhart v. Superior Court, 137 Cal. 579, 92 Am. St. Rep. 183, 70 Pac. 629; Bev. eridge v. Lewis, 137 Cal. 629, 92 Am. St. Rep. 188, 67 Pac. 1040, 70 Pac. 1083.

This section has been cited in following cases, which do not pertain to private corporations: Webber v. Co. of Santa Clara, 59 Cal. 265; Tehama Co. v. Bryan, 68 Cal. 65, & Pac. 673; San Francisco v. Collins, 98 Cal. 262, 33 Pac. 56; San Francisco v. Kiernan, 98 Cal. -617, 33 Pac. 720; Tyler v. Tehama Co., 109 Cal. 622, 42 Pac. 240; Bigelow v. Ballerino, 111 Cal. 563, 44 Pac. 307; Rudel v. L. A, Co., 118 Cal. 287, 50 Pac. 400; Eachus v. Los Angeles, 130 Cal. 495, 80 Am. St. Rep. 147, 62 Pac. 829.


Delegation of Right of Eminent Domain.—The right of eminent domain is inherent in the state and not conferred by the Constitution, and may be delegated by the legislature to any corporation or individual who shall comply with the terms upon which the right is given. The codes confer upon private individuals the right of emiwent domain for railroad purposes, and that right may be exercised by 3 partnership. (Moran v. Ross, 79 Cal. 159, 21 Pac. 547.)

The power of eminent domain is one of the inalienable incidents of sovereignty which may be exercised in favor of public uses over any and all property, private and even public, and the property and franchises of corporations, as well as of individuals, although dedicated to public use, may be taken for other public uses; but this inalienable power is to be exercised under and by virtue of the legislative will as expressed by the law-making power, and the right to exercise it must be given expressly or by necessary implication from the power expressly given. (S. P. R. R. Co. v. S. Ca. Ry. Co., 111 Cal. 221, 43 Pac. 602.)

The state may select its own agents and agencies in exercising the power of eminent domain, and may select foreign corporations or governments. (Gilmer v. Lime Point, 18 Cal. 229.)

Either a corporation or an individual may be made the agent of the state to prosecute proceedings for condemnation. (Lux v. Haggin, 69 Cal. 301, 10 Pac. 674.)

It is competent for the legislature to prescribe the several steps to be pursued in the assertion of the right to compensation for land appropriated for public use, but the prescribed procedure must not destroy or substantially impair the right itself. (Potter v. Ames, 43 Cal. 75.)

The mode of exercising the power of eminent domain and the conditions upon which it is invoked are subjects of general laws, applicable to all persons alike, and the legislature has no power to make arbitrary discriminations in this respect between different classes of persons. (Pasadena v. Stimson, 91 Cal. 238, 27 Pac. 604; Beveridge v. Lewis, 137 Cal. 632, 92 Am. St. Rep. 188, 67 Pac. 1040, 70 Pac. 1083.)

Jury. This provision of the Constitution contemplates and provides for a proceeding in court in all cases where private property is taken for a public use, and prohibits any other proceeding to that end; and the owner, is entitled to a jury trial for the purpose of ascertaining the damages. (Weber v. Santa Clara Co., 59 Cal. 265; Trahern v. San Joaquin Co., 59 Cal. 320.)

The right of trial by jury in cases of eminent domain did not exist prior to the new Constitution. (Koppikus v. State Capito! Commrs., 16 Cal. 248; People v. Blake, 19 Cal. 579.)

Police Power.—The police power will not authorize the state to take private property for public use without compensation, when such property can be condemned and paid for. (People v. Elk etc. Co., 107 Cal. 221, 48 Am. St. Rep. 125, 40 Pac. 531.)

Acquisition of Property by Exercise of Eminent Domain.- Any person may, without further legislative action, acquire private property for any use specified in section 1238 of the Code of Civil Procedure, either by consent of the owner or by proceedings had under the provisions of title VII, part III, of the Code of Civil Procedure; and any person seeking to acquire property for any of the uses mentioned in such title is "an agent of the state," or a "person in charge of such use," within the meaning of those terms as used in such title. (Sec. 1001, C. C.; St. Helena Water Co. v. Forbes, 62 Cal. 183, 45 Am. Rep. 659; Lux v. Haggin, 69 Cal. 301, 10 Pac. 674; Noran v. Ross, 79 Cal. 162, 550, 21 Pac. 547, 958; Pasadena v. Stim. son, 91 Cal. 248, 27 Pac. 604; City of Santa Cruz v. Enright, 95 Cal. 111, 112, 30 Pac. 197; Kellett v. Clayton, 99 Cal. 213, 33 Pac. 885; City of Los Angeles v. Leavis, 119 Cal. 165, 51 Pac. 34; Robinson v. Southern Cal. Ry. Co., 129 Cal. 11, 61 Pac. 947; Beveridge v. Lewis, 137 Cal. 632, 92 Am. St. Rep. 188, 67 Pac. 1040, 70 Pac. 1083.)

The provisions of section 1001 of the Civil Code confer upon pri. vate individuals the right of eminent domain, and the language of section 14 of article I of the Constitution does not restrict the exercise the right of eminent domain to municipal and private corporations. (Moran v. Ross, 79 Cal. 162, 550, 21 Pac. 547, 958.)

A corporation is a person within the meaning of section 1001 of the Civil Code. (Pasadena v. Stimson, 91 Cal. 248, 27 Pac. 604; City of Los Angeles v. Leavis, 119 Cal. 165, 51 Pac. 34.)

A corporation having the right of eminent domain is a state agent in its exercise. (Robinson v. Southern Cal. Ry. Co., 129 Cal. 11, 61 Pac. 947.)

Legislature may confer the right upon railroad companies to take land from owners upon the payment of a just compensation. (Contra Costa R. R. Co. v. Morse, 23 Cal. 323.)

Property.—The right of a riparian owner cannot be taken away, except for public use on due compensation. (Lux v. Haggin, 69 Cal. 255, 372, 10 Pac. 674.)

This section does not apply to any mere diminution in value of abutting lands by the closing of a street in whole or in part, nor to any mere inconvenience to abutting owners thereby occasioned, if access to their land is not prevented. (Brown v. Supervisors, 124 Cal. 275, 57 Pac. 275.)

Although the supervisors have authority to close a public street, the owner of adjoining property has an easement therein, of which he cannot be deprived without compensation. (Bigelow v. Ballerino, 111 Cal. 559, 44 Pac. 307.)

The right of the owner of a city lot to the use of the street adjacent thereto is property, and any act by which this right is impaired is to that extent a damage. (Eachus v. Los Angeles etc. Ry. Co., 103 Cal. 614, 42 Am. St. Rep. 149, 37 Pac. 750.)

No compensation need be made for the vacation of a public street which has not been dedicated by the owners of the land. (Levee Dist. No. 9 v. Farmer, 101 Cal. 178, 35 Pac. 569.)

Money is not that species of property which the sovereign authority can authorize to be taken in the exercise of the right of eminent domain. (Burnett v. Sacramento, 12 Cal. 76, 73 Am. Dec. 518; Emery v. San Francisco, 28 Cal. 345.)

The leasehold interest in convicts leased by the state is as much property as are lands held in fee. (McCauley v. Brooks, 16 Cal. 11.)

A franchise for a street railroad is property capable of being benefited by the widening of the street. (Appeal of North Beach etc. R. R. Co., 32 Cal. 499.)

i The legislature may grant the right to construct a railroad upon a public street without providing for compensation for the damage

« PreviousContinue »