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done to the owners of the adjacent property, provided the owners of the property are not the owners usque ad filum viae. (Carson v. Central Pac. R. R. Co., 35 Cal. 325.)

A person who owns lots fronting on a street dedicated by himself to the public use is entitled to damages, if a railroad company lays its track along the street, and thereby obstructs it for the use of teams and vehicles, and if the value of the lot is diminished thereby. (Southern Pac. R. R. Co. v. Reed, 41 Cal. 256.)

An act providing that a tax collector shall receive the fees al. lowed by law, and pay a part of such fees into the treasury for the benefit of the county, does not take private property for public use. (Ream v. Siskiyou County, 36 Cal. 620.)

Digging and maintaining ditches and drains across private lands is a taking of property. (Nickey v. Stearns Ranchos Co., 126 Cal. 150, 58 Pac. 459.)

Under section 499 of the Civil Code, a street railroad company cannot claim that the using of its tracks by another company is a taking of private property, which must be done under proceedings in eminent domain. (Pacific Railway Co. v. Wade, 91 Cal. 449, 25 Am. St. Rep. 201, 27 Pac. 768.)

Public Use.—Legislative department is the source of power to de. termine what shall be held to be a lic use, as a general rule: and its action on the question is not, except in extreme cases, open to review by the courts (City of Santa Ana v. Harlin, 99 Cal. 538, 34 Pac. 224), but whether, in an individual case, the use is a public one must be determined by the court from the facts and circumstances of that case. (Lindsay etc. Co. v. Mehrtens, 97 Cal. 676, 32 Pac. 802.)

The right of eminent domain can be exercised only in behalf of those public uses which the legislature has authorized, and in the mode and in the manner and with the limitations prescribed by the statute authorizing it. (Lindsay etc. Co. v. Mehrtens, 97 Cal. 676, 32 Pac. 802.)

The determination as to whether or not the right of eminent domain shall be exercised, and as to what lands are necessary to be taken, is a political and legislative question, and not a judicial one. (Wulzen v. Board of Supervisors, 101 Cal. 15, 40 Am. St. Rep. 17, 35 Pac. 352; Sutter Co. v. Tisdale, 136 Cal. 474, 69 Pac. 141.)

The question whether the uses for which property is sought to be taken, in the exercise of eminent domain, are in fact public, is a judicial question, to be determined by the court; and if it can be shown that the end sought is solely for private purposes, condemnation will be denied. (County of San Mateo v. Coburn, 130 Cal. 631,

621.) The formation of an irrigation district for the purpose of reclaiming arid land is a public purpose for which private property may be taken. (Thurlock Irr. Dist. v. Williams, 76 Cal. 360, 18 Pac. 379;

63 Pac. 78,

Central Irr. Dist. v. De Lappe, 79 Cal. 351, 21 Pac. 825; Crall v. Poso Irr. Dist., 87 Cal. 140, 26 Pac. 797.)

The legislature is the sole judge of the public necessity or advantage of a proposed improvement as a public use. (Gilmer v. Lime Point, 18 Cal. 229.)

The words “public use" mean a use which concerns the whole community, as distinguished from a particular individual or a particular number of individuals. But it is not necessary that each and every individual member of society should have the same degree of interest in this use, or be personally or directly affected by it, in order to make it public. (Gilmer v. Lime Point, 18 Cal. 229.)

To condemn land within the state for a United States fort or other military or naval purpose is to condemn land for a public use. (Gilmer v. Lime Point, 18 Cal. 229.)

The only test of the admissibility of the power of the state to condemn land for “public use” is that the particular object for which the land is condemned tends to promote the general interest, in its relation to any legitimate object of government. (Gilmer v. Lime Point, 18 Cal. 229.)

The public use" is left in large measure to legislative determina. tion; and the legislative resolve by which a tax is imposed or private property taken is such legislative determination. (Stockton etc. R. R. Co. v. Stockton, 41 Cal. 147; Contra Costa etc. Co. v. Moss, 23 Cal. 323.)

But the legislative determination that a certain business is a public use is not conclusive of its character. (Consolidated Channel Co. v. Central Pac. R. R. Co., 51 Cal. 269.)

A railroad for the transportation of passengers and freight is a public use. (San Francisco etc. R. R. Co. v. Caldwell, 31 Cal. 367; Contra Costa etc. Co. v. Moss, 23 Cal. 323; Stockton etc. R. R. Co. v. Stockton, 41 Cal. 147; Napa Valley etc. R. R. Co. v. Napa, 30 Cal. 435; S. F. etc. R. R. Co. v. Leviston, 134 Cal. 412, 66 Pac. 473.)

The supplying of water to a farming neighborhood is a public use. (Lux v. Haggin, 69 Cal. 255, 10 Pac. 674; Lindsay Irr. Co. v. Mehr. tens, 97 Cal. 676, 32 Pac. 802.)

A corporation, for the purpose of supplying the inhabitants of a town with water, can exercise the right of eminent domain. (People ex rel. Heyneman v. Blake, 19 Cal. 579; St. Helena Water Co. v. Forbes, 62 Cal. 182; S. V. W. W. v. San Mateo W. W., 64 Cal. 123, 28 Pac. 447. Distinguished in McLain v. Contra Costa W. Co., 67 Cal. 1084; Lake Pleasanton Water Co. v. Contra Costa W. Co., 67 Cal. 659, 8 Pac. 501; S. V. W. W. v. Drinkhouse, 92 Cal. 528, 28 Pac, 681; City of Santa Cruz v. Enright, 95 Cal. 105, 30 Pac, 197; City of Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585.)

The fact that a railroad is owned and operated by a private corporation and for private profit does not prevent it from being also a “public use." Aid may be extended to the construction of such road by means of the power of eminent domain or by subscriptions of capital stock and by donations made by cities and other political subdivisions of the state under the authority of the legislature. (Stockton R. R. Co. v. Stockton, 41 Cal. 147. Note citation: 59 Am. Dec. 783.)

Land can be condenrned only by one who is in charge of a public use, and cannot be condemned for a right of way by one who is not engaged in and does not contemplate the building of a railroad, for the sole purpose of transferring the same to a railroad company. One who seeks a right of way merely to sell is not in charge of a public use. (Beveridge v. Lewis, 137 Cal. 619, 92 Am. St. Rep. 188, 67 Pac. 1040, 70 Pac. 1083.)

Private Use.--The legislature cannot take private property for a private use, and it must declare the purpose to be one of public necessity or convenience. (Nickey v. Stearns Ranchos Co., 126 Cal. 150, 58 Pac. 459; Consolidated Channel Co. v. Central Pac. R. R. Co., 51 Cal. 269; Brenham v. Story, 39 Cal. 179; Sherman v. Buick, 32 Cal. 241, 91 Ant. Dec. 577.)

Thus an act permitting a person to build a flume on the land of another to carry off the tailings from his mine is void. (Consolidated Channel Co. v. Central Pac. R. R. Co., 51 Cal. 269.)

Also an act giving a right to miners to enter upon private property, where no such right existed anterior to its passage. (Gillan v. Hutchinson, 16 Cal. 153.)

Also an act authorizing an administrator to sell real property belonging to the estate of his decedent, who died before the passage of the act, except in satisfaction of the liens of creditors, for the support of the family, or to pay the expenses of administration. (Brenham v. Story, 39 Cal. 179.)

The legislature has power to open so-called “private roads,” from main roads to the residences or farms of individuals. The fact that they are called “private" is immaterial, since all roads are public. (Sherman v. Buick, 32 Cal. 241, 91 Am. Dec. 577. See Monterey Co. v. Cushing, 83 Cal. 507, 23 Pac. 700.)

The right of eminent domain cannot be exercised in favor of owners of mining claims to enable them to obtain water to work the claims, although the intention may also be to supply water to others for mining and irrigation purposes. (Lorenz v. Jacobs, 63 Cal. 73.)

A mine owner cannot condemn a right of way through a mining claim for his private use in working his mine. (Amador etc. Mining Co. v. De Witt, 73 Cal. 482, 15 Pac. 74.)

Damaged.—The provision of this section against property being damaged for public use is not found in the Constitution of 1849. As to the meaning of the word “damaged" as used in this section, see Reardon v. San Francisco, 66 Cal. 492, 501-506, 6 Pac. 317. A mere infringement of the owner's personal pleasure or enjoy.


mrent, or merely rendering the property less desirable for certain purposes, or even causing personal annoyance and discomfort, does not constitute a damage within the meaning of this section. (Eachus v. Los Angeles etc. Ry, Co., 103 Cal. 614, 42 Am. St. Rep. 149, 37 Pac. 750.)

Where the damage is not the natural, certain, and immediate consequence of an improvement, compensation need not be made in ad

(De Baker v. Railway Co., 106 Cal. 257, 46 Am. St. Rep. 237, 39 Pac. 610.)

An act providing for a proposed alteration of a public road, and requiring persons claiming compensation for land to be taken to pre. sent their claims within a certain time, or be deemed as waiving all right to damages, is valid. (Potter v. Ames, 43 Cal. 75.)

Possession Pending Condemnation.—When land is sought to be taken for public use by a private corporation in the exercise of the right of eminent domain, the court has no power to make a preliminary order placing the corporation in the possession of the land during pendency of the proceedings upon giving security to pay dam. ages, nor has the legislature any power to confer such authority. If such an order is made and the corporation acts on it, it is the taking of private property for public use. (Sanborn v. Belden, 51 Cal. 266; San Mateo W. W. v. Sharpstein, 50 Cal. 284; Cal. P. R. R. Co. v. C. P. R. R. Co., 47 Cal. 528; Davis v. San Lorenzo R. R. Co., 47 Cal. 517; Vilhac v. Stockton etc. Co., 53 Cal. 212; Coburn v. Goodall, 72 Cal. 505, 1 Am. St. Rep. 498, 14 Pac. 190; Callahan v. Dunn, 78 Cal. 370, 20 Pac. 737.)

Section 1254 of the Code of Civil Procedure, in regard to proceedings for the condemnation of property for public use, allowing an adequate fund to be paid into court, whereupon the court may authorize the plaintiff to take possession of the property until the final determination of the litigation, is not inconsistent with this section. (Spring Valley W. W. v. Drinkhouse, 95 Cal. 220, 30 Pac. 218. But see Steinhart v. Superior Court, 137 Cal. 575, 92 Am. St. Rep. 183, 70 Pac. 629.)

The legislature cannot authorize the occupation of the land sought to be condenrned pending the proceeding without first requiring com. pensation to be paid therefor, which may be received by the defendant, and section 1254 of the Code of Civil Procedure is unconstitutional in so far as it provides to the contrary. (Steinhart v. Superior Court, 137 Cal. 575, 92 Am. St. Rep. 183, 70 Pac. 629.)

A statute allowing the plaintiff to take possession upon the filing of a bond is void. (Vilhac v. Stockton etc. R. R. Co., 53 Cal. 208; San Mateo W. W. v. Sharpstein, 50 Cal. 284; Sanborn v. Belden, 51 Cal. 266. But see Fox v. Western etc. R. R. Co., 31 Cal. 538.)

The railroad act of 1861 is constitutional, although authorizing entry on land before actual payment of compensation. (Fox v. K. R. Co., 31 Cal. 538. To same effect: Davis v. R. R. Co., 47 Cal. 519.)

Compensation.—Neither title nor any right of possession comes from mere condemnation of private property for public use. Just compensation actually made or secured according to law is a condition precedent. (Bensley v. Mt. Lake Water Co., 13 Cal. 306, 73 Am. Dec. 505; McCann v. Sierra Co., 7 Cal. 121; Colton v. Rossi, 9 Cal. 599; McCauley v. Weller, 12 Cal. 528; Curran v. Shattock, 24 Cal. 427; Sac. Valley R. R. Co. v. Moffitt, 7 Cal. 577.)

Under section 14 of article I of the Constitution, private property cannot be taken or damaged for public use without just compensation having been first made to or paid into court for the owner, and the legislature cannot authorize a public use, the natural result of which would be to deprive the owner of property of its beneficial use without compensation to the party injured. (Rudel v. Los Angeles County, 118 Cal. 281, 50 Pac. 400.)

The means of compensation must be provided before the property is taken. (McCauley v. Weller, 12 Cal. 500.)

If failure be made in paying or providing such compensation, the party may retake possession of the property. (Colton v. Rossi, 9 Cal. 595.)

There is no vested right to compensation until the property is taken. (Lamb v. Schottler, 54 Cal. 319.)

The fact to be ascertained is the value of the land at the time it is taken, and testimony to prove the annual net profits is not admissible. (Stockton etc. Co. v. Galgiana, 49 Cal. 139.)

A railroad corporation cannot, under the sanction of a statute relating to eminent domain, enter upon lands and construct its road before commencing condemnation proceedings. (Robinson v. Southorn Cal. Ry. Co., 129 Cal. 8, 69 Pac. 947.)

An ordinance fixing water rates must allow a just and reasonable compensation to the water company for the property used and the services furnished by it. (San Diego Water Co. v. San Diego, 118 Cal. 556, 62 Am. St. Rep. 261, 50 Pac. 633.)

In a condemnation proceeding, the land owner is not liable for costs, but is entitled to recover his own costs from the plaintiff. (San Francisco v. Collins, 98 Cal. 259, 33 Pac. 56.)

Where a railroad company, prior to the commencement of proceedings to condemn a right of way, but with the bona fide intent to commence such proceedings, erects structures thereon, it is not required to pay for the structures so erected in the condemnation proceeding. (Albion River R. R. Co. v. Hesser, 84 Cal. 435, 24 Pac, 288; San Francisco etc. R. R. Co. v. Taylor, 86 Cal. 246, 24 Pac. 1027.)

The provision of section 1249 of the Code of Civil Procedure that, for the purpose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the summons,

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