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of land sought to be taken, and whether the same includes the whole or only a part of an entire tract.-San Francisco etc. Ry. Co. v. Gould, 122 Cal. 601, 55 Pac. 411.

[q] A complaint by a city showed that the object of the proceeding was to condemn all the estate and interest of defendants in certain land described; alleging the interest to be the fee, subject only to the city's ownership of the exclusive right to the use of all the waters of a river flowing through it. Held, on demurrer, that the complaint sufficiently described the property sought to be condemned.-City of Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585.

[r] The right of action by a city to condemn an easement or right of way for an alley is derived from statute, and is given in the interest of the general public. The complaint in such action need not show any previous right of the city to the easement, nor any previous user or servitude.-Santa Ana v. Brunner, 132 Cal. 234, 64 Pac. 287. [s] In a condemnation of realty for an alley, a complaint which definitely describes the land, and asserts the purpose to be to acquire an easement or right of way for a public use by the extension of an alley through the land described, is not demurrable on the ground of ambiguity and uncertainty.-City of Santa Ana v. Brunner, 132 Cal. 234, 64 Pac. 287.

[t] In an action by a city to condemn a strip of land for a sewer, the defendant, under the general denial of the necessity to construct the sewer over the proposed line as alleged in the complaint, may give evidence to show that the sewer could as readily be located along a designated street of the defense city; but if such be specifically pleaded in the answer, it is not error to allow the answer to stand as against a demurrer.Santa Ana v. Gildmacher, 133 Cal. 395, 65 Pac. 883.

[u] Under Code of Civil Procedure, section 1244, subdivision 4, requiring a complaint in proceedings to condemn land for a railroad right of way to show the location, general route, and termini" of the road, an allegation that "the location and general route of said road are from some point in the city and county of S. or some point on the Bay of S., or the waters discharging into it, in a general easterly direction to the city of A., and from thence in a general easterly and southerly direction to a point in the vicinity of the city of B," and that "the termini of the road are, respectively, the city and county of S. and the point in the vicinity of B," is a sufficiently definite statement of the location, general route, and termini.-San Francisco etc. Ry. Co. v. Leviston, 134 Cal. 412, 66 Pac. 473.

[v] Under Code of Civil Procedure, section 1244, prescribing requisites of a complaint for condemnation of land, no statement that the proposed location of a railroad is compatible with the greatest public good and the least private injury is required.-San Francisco etc. Val. Ry. Co. v. Leviston, 134 Cal. 412, 66 Pac. 473.

[w] The sufficiency of a petition for the laying out of a road was not impaired by its asking the abandonment of an old road as well as the laying out of the new one.Sutter County v. Tisdale, 136 Cal. 474, 69 Pac. 141.

[x] Where a natural person, acting as agent of one in charge of a public use, and who intends to perform a public service, institutes proceedings for condemnation of land, it is necessary that the agency should be alleged.Beveridge v. Lewis, 137 Cal. 619, 70 Pac. 1083, 59 L. R. A. 581.

[y] Where the description of the land condemned is aided by a map attached to and made part of the complaint, and which is referred to in the judgment, and a surveyor could, with the description and the map, have no difficulty in definitely locating the road, the description is sufficiently certain.-County of Madera v. Raymond Granite Co., 139 Cal. 128, 72 Pac. 915.

[z] Complaint alleging that plaintiff required title to land sought to be condemned and to other lands for the purpose of excavating a tunnel, states no cause of action for condemnation of the land.-City of Santa Barbara v. Gould, 143 Cal. 421, 77 Pac. 151.

[aa] Complaint contained the name of defendant as a corporation duly organized and acting under the laws of California, and alleged that plaintiff was constructing a railroad, and seeks to acquire a right of way, one hundred feet in width, through the lands of the defendant, said right of way being more particularly described as follows: Being a strip of land, one hundred feet in width, located and included between lines on each side of, parallel to, and fifty feet distant from, the center line of location of plaintiff's railroad, as the same is located through the lands of the defendant." Held sufficient under Code of Civil Procedure, section 1244. California Southern R. Co. v. Colton Land etc. Co., 2 Pac. 38.

[bb] A complaint in a proceeding by a county to condemn land for a highway held sufficient within Political Code, sections 2688, 2689, and Code of Civil Procedure, section 1963, subdivisions 15-20.-Mendocino County v. Peters (Cal. App.), 82 Pac. 1122.

[ce] Under Code of Civil Procedure, section 1244, relating to eminent domain, complaint in proceedings to condemn a railroad crossing held sufficient.-Boca etc. R. Co. v. Sierra Valleys Ry. Co. (Cal. App.), 84 Pac. 298.

[dd] Under Civil Code, section 291, subdivision 2, a railroad corporation, by describing where one branch is to run, cannot exercise the right to condemn property for different branches.-Boca etc. R. Co. v. Sierra Valleys Ry. Co. (Cal. App.), 84 Pac. 298.

FOR AUTHORITIES FROM OTHER STATES:

See 15 Cyc. 850-859; 18 Cent. Dig., cols. 1510-1537, §§ 509-518.

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[b] In condemning land for an alley, a mere denial of the city's right to lay out the alley raises no issue of fact.-City of Santa Ana v. Brunner, 132 Cal. 234, 64 Pac. 287.

[c] In condemning realty for an alley, a contention that the city had no right to condemn the land, because one of its trustees signed the petition which was presented to the board, is untenable, where it is not alleged that such trustee's vote was essential to the hearing.-City of Santa Ana v. Brunner, 132 Cal. 234, 64 Pac. 287.

[d] In condemning realty for an alley, an answer alleging that the right of way was sought for the convenience of the adjoining land owners, and not for the public benefit, and that other land could be taken, presents no material issue, since a city in condemning land for an alley need only prove that the taking of the property sought to be condemned was necessary for alley purposes. City of Santa Ana v. Brunner, 132 Cal. 234, 64 Pac. 287.

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§ 107.

Issues, Proof and Variance. [a] To obtain the condemnation of land for railroad purposes, the averment that the company have endeavored to contract for the land, but have been unable to do so, must be proved.-Contra Costa R. Co. v. Moss, 23 Cal. 323.

[b] Court exercises limited and statutory jurisdiction in proceedings for the condemnation of land for public use, and should confine the issues to matters which are material to and directly connected with the judg ment sought.-California Pacific R. R. Co. v. Central Pacific R. R. Co., 47 Cal. 549.

[c] In a proceeding to condemn land for railroad purposes, damages resulting to the

remainder of the tract not taken, on account of the shape in which it will be left, or of the effect of an embankment built along the railroad track, or from cutting off the front from a county road, so as to injure its sale for building sites, are not special damages, and may be proved without being set up in the answer.-North Pac. R. Co. v. Reynolds, 50 Cal. 90.

[ed] In an action by a city to condemn land as a street, where the plaintiff alleges title to be in defendant, evidence of a dedication by him is inadmissible.-City of San Jose v. Reed, 65 Cal. 241, 3 Pac. 806.

[d] In proceedings to condemn lands for railroad purposes, there being no allegation in the answer that fences and cattle-guards would be necessary to be constructed in case the railway should be built, it is not error to fail to find upon that question. Moran v. Ross, 79 Cal. 159, 21 Pac. 547; Moran v. Farley, 21 Pac. 549.

[e] It is duty of owner to allege and prove value of land.-San Diego etc. Co. v. Neale, 88 Cal. 55, 25 Pac. 977.

[f] In condemnation proceedings for sewerage of a city or town it is immaterial whether or not it is incorporated, and it is therefore unnecessary to prove its incorporation, although averred in the complaint.City of Pasadena v. Stimson, 91 Cal. 238,

27 Pac. 604.

[g] An averment in the complaint that the city tendered a specified sum to the defendant as compensation was unnecessary, and a denial thereof in the answer raised an immaterial issue.-Santa Ana v. Brunner, 132 Cal. 234, 64 Pac. 287.

[h] In proceedings for the condemnation of land for a public street, the owner must allege and prove damages for improvements, if such damages are claimed.-City of Alameda v. Cohen, 133 Cal. 5, 65 Pac. 127.

FOR AUTHORITIES FROM OTHER STATES:

See 15 Cyc. 862, 863; 18 Cent. Dig., cols. 1545-1548, § 524.

§ 108. Hearing and Determination as to Right to Take.

[a] Title to land cannot be tried in proceeding of eminent domain.-Sacramento Val. R. R. Co. v. Moffatt, 7 Cal. 577.

[b] The first order in proceedings for the condemnation of land, under the act of 1859, determines nothing, but involves a right to contest the averments of the pleading which set up a right to condemn the land. The force or use of these averments is not limited to a mere statement of facts authorizing the judge below to give notice.-Gilmer v. Lime Point, 19 Cal. 47.

[c] In condemning land for an alley, an objection that the board of trustees failed to acquire jurisdiction because there was no hearing of the objections cannot be main

tained, where defendant had an opportunity and did state his reasons for objecting to the board, though he was afterward excluded from the room, so that the board might pass on the objections privately.-City of Santa Ana v. Brunner, 132 Cal. 234, 64 Pac. 287.

[d] A water company furnishing water to inhabitants of a village owned land adjacent to a stream, with a right to a certain amount of its water. In a proceeding by a city to condemn the land for a water supply, the court found that the water company was not devoting the water to any public use when the action was commenced, but that the land was of special value to the company for the preservation of the stream; that the company had a right to a certain amount of water from the stream, but that, because of drought, and a tunnel previously dug through the land by plaintiff, the water had ceased to flow to the point where the company diverted it for its use. Held that the finding that the company was not devoting the water or the land to any public use was in conflict with the other findings, inasmuch as the temporary cessation of the flow of water caused by the construction of the tunnel by plaintiff and by the drought did not deprive the company of its right to use the water. City of Santa Barbara v. Gould, 143 Cal. 421, 77 Pac. 151.

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[a] Want of power to obstruct navigation by a bridge may be considered in condemnation proceedings, so far as affecting the right of condemnation and no further.-California P. R. R. Co. v. Central Pacific R. R. Co., 47 Cal. 553.

[b] A petition alleging that "the council duly passed an ordinance in writing" condemning certain property, and "that it is now necessary to condemn said land for public use," is a sufficient showing of the passage of the ordinance, and of the necessity of taking the land for public use.-City of Los Angeles v. Waldron, 65 Cal. 283, 1 Pac. 883.

[c] Evidence that a witness had surveyed a route fourteen hundred and thirty-two feet shorter than that proposed for a sewer, on a better grade, through lands not thickly settled, was admissible.-City of Pasadena v. Stimson, 91 Cal. 238, 27 Pac. 604.

[d] An offer of the defendant to prove a shorter and more practicable route than the one sought to be condemned is properly rejected as inadmissible.-County of Siskiyou v. Gamlich, 110 Cal. 94, 42 Pac. 468.

[e] Under the statute requiring a certain form for the tender of money awarded the owner of property sought to be taken for a highway before a condemnation suit can be Cal. Digest, Vol. 2-124

commenced, the presumption that the official duty has been regularly performed will not dispense with evidence showing a compliance with an order of the board of supervisors awarding damages.-Sutter County v. McGriff, 130 Cal. 124, 62 Pac. 412.

[f] Under Civil Code, section 465, subdivisions 1, 4, 7, giving railroad corporations power to select the most advantageous routes, to lay out their routes, and to purchase land, etc., as may be required, the necessity of a right of way through private property is conclusively established by the existence of the public use and the fact that the location has in fact been made through the property.-San Francisco etc. Ry. Co. v. Leviston, 134 Cal. 412, 66 Pac. 473.

[g] In an action by a county to condemn land for a road, the introduction of a petition to the supervisors for the laying out of the road, with a bond for the costs and expenses of viewing and surveying, accompanying the same; the record of the appointment of viewers; their report, and its approval by the board, and the assessment of damages; the order of the board that the damages assessed and awarded be set apart in the treasury out of the proper fund; and proof that the same was set apart more than ten days prior to the commencement of the action, but had not been accepted—made a prima facie case for plaintiff. Sutter County v. Tisdale, 136 Cal. 474, 69 Pac. 141.

[h] In condemnation proceedings by a railroad evidence considered, and held sufficient to show the use a public one.-Madera Ry. Co. v. Raymond Granite Co. (Cal. App.), 87

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[a] Since the state has the general power to take private property for public use,'' in any particular case, it devolves upon one objecting to such taking to show that it is an exception to the general power.-Gilmer v. Lime Point, 18 Cal. 229.

[b] Before land can be taken for a public use it must appear that the taking is necessary for such use, and such necessity is a question of fact to be determined by the court or jury, in view of all the evidence in the case, the burden of proof being upon the corporation seeking the condemnation, to show that the land is reasonably required for the purpose of effecting the object or carrying on the business for which the corporation was organized.-Spring Valley W. W. v. Drinkhouse, 92 Cal. 528, 28 Pac. 681.

[c] Under Code of Civil Procedure, sections 1238, 1241, held, that in condemnation proceedings by a railroad the burden is on the corporation to show the use a public one.Madera Ry. Co. v. Raymond Granite Co. (Cal. App.), 87 Pac. 27.

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[a] Whether workshops for repairing and safely keeping the cars and locomotives of a railroad are necessary appendages to a railroad, and whether land sought to be condemned as a site for such workshops is really needed for that purpose, are questions of fact on which issues may be joined, to be decided at the trial.-Southern Pac. R. R. Co. v. Raymond, 53 Cal. 223.

[b] Question as to whether crossing one railroad by another in a certain manner is compatible with the greatest possible public benefit and least private injury" is one of fact, determinable by reference to the proven circumstances in each case.-California Southern R. Co. v. Southern Pac. R. Co., 67 Cal. 59, 7 Pac. 123-128.

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[c] In proceedings to condemn private prop. erty for a sewer, the proposed sewer parallel to and ninety-five feet from a street. This street was paved with asphalt, and the evidence showed that it would be more con venient and less expensive to the property owners to have the sewer constructed as pro posed, rather than in the street, and that the street would be materially damaged in hav ing the pavement torn up. Held, under Code of Civil Procedure, section 1242, providing that, where land is taken for public use, such use must be located where most beneficial to the public and least injurious to the citi zens, error to direct a verdict for defendant on the question of the necessity for the construction, as being a question of fact for the jury.-City of Santa Ana v. Gildmacher, 133 Cal. 395, 65 Pac. 883.

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[a] Where, in proceedings to condemn prop. erty for a public use, the question whether the taking of the same is necessary for such use is submitted to a jury, and the jury find on the issue, the court has no power to disregard the finding of the jury and make findings of its own.-Wilmington Canal etc. Co. v. Dominguez, 50 Cal. 505.

[b] In a proceeding to condemn land for a ditch or canal, in which the proposed public use is alleged by defendant to be a mere pretense, defendant is entitled to a special finding of the jury upon that issue, there being no general verdict.-Cummings v. Pe ters, 56 Cal. 593.

[c] After the court has submitted the ques tion, "Were the lands described in plaintiff's complaint, and sought to be condemned for the right of way, .... necessary for such

right of way?" it is not an abuse of discretion to refuse to recall the jury, and submit an interrogatory requested by defendants as to whether it was necessary for plaintiff to take any of their tract for its right of way. California Cent. Ry. Co. v. Hooper, 76 Cal 404, 18 Pac. 599.

§ 113. Evidence as to Compensation-Presumptions and Burden of Proof.

[a] If no evidence be introduced upon any issue finding must be against party having burden of proof.-Monterey County v. Cushing, 83 Cal. 510, 23 Pac. 700.

[b] Burden of proving value of property condemned is on defendant.-Monterey County v. Cushing, 83 Cal. 510, 23 Pac. 700.

[c] Burden is on defendant to prove value of land.-San Diego etc. Co. v. Neale, 88 Cal. 55, 25 Pac. 977.

[d] The acts of the state or its agents in charge of a public use in surveying and locating land under express statutory authority, in exercise of the right of eminent domain, are presumed correct and lawful, in the absence of evidence to the contrary; and where it is attempted to show that the loca tion made is unnecessarily injurious to the owners of property affected thereby, the burden of proof is upon them, and the proof ought to be clear and convincing.-Pasadena v. Stimson, 91 Cal. 238, 27 Pac. 604.

[e] Where defendant, through whose land a private road was surveyed, refused to accept the compensation awarded, and the case was tried by a jury, he cannot complain of the jury's action in assessing damages on the ground that the evidence is insufficient to justify the verdict, as the burden of prov ing damages rests on defendant.-Los Angeles County v. Reyes, 32 Pac. 233.

FOR AUTHORITIES FROM OTHER STATES: See 15 Cyc. 898; 18 Cent. Dig., cols. 1566, 1567, § 540.

§ 114.

Admissibility in General.

[a] In a proceeding by the government to condemn land, evidence of a contract between the owner and the government for the sale of the land, and evidence of the value of the land to the government as a fort, is properly refused.-Gilmer v. Lime Point, 19 Cal. 47.

[b] Evidence of dedication of a street sought to be condemned cannot be considered as affecting compensation.-City of San Jose v. Freyschlag, 56 Cal. 8.

[c] In proceedings by private individuals to condemn land for railway purposes, it is not error to refuse to permit defendant to prove that the general line of plaintiff's projected road was first located by a railroad corporation, and that some of it on a different portion of the line was actually built.Moran v. Ross, 79 Cal. 159, 21 Pac. 517; Moran v. Farley, 21 Pac. 549.

[d] The general rule is that in actions to condemn land for public use no damages can be allowed for injury to business caused merely by the improvement, and not by the taking of the property, and where a general offer is made to show damage to business on the line of the proposed widening of a street, without specifying the nature of the alleged damages, or whether the business was done on the land taken or on the land damaged, for which compensation was awarded by the jury, it does not appear that the proffered testimony is competent, and no error appears in its exclusion.-City and County of San Francisco v. Kiernan, 98 Cal. 614, 33 Pac. 720.

[e] The supervisors who acted upon the petition are competent as witnesses to testify as to the damages sustained by the defendant, and their testimony cannot be rejected upon the ground that their records are the best evidence of their determination as to damages.-County of Siskiyou v. Gamlich, 110 Cal. 94, 42 Pac. 468.

[f] Where there is no suggestion or claim that any of the signers to the petition were minors, proof of their age or ages before the board of supervisors is not required, and testimony as to whether the board took or heard any evidence as to their age or ages is properly excluded.-County of Siskiyou v. Gamlich, 110 Cal. 94, 42 Pac. 468.

[g] In proceedings by a county to condemn land for widening a highway, the admission in evidence of the auditor's warrant in favor of the owner of the land for the damages awarded was admissible, under Code of Civil Procedure, section 1870, subdivision 1.—Mendocino County v. Peters (Cal. App.), 82 Pac.

1122.

FOR AUTHORITIES FROM OTHER STATES:

See 15 Cyc. 899; 18 Cent. Dig., cols. 15671572, § 5402.

§ 115.

Value of Property.

[a] Witnesses having knowledge of surroundings and of values may testify as to values though they are not experts.-San Diego L. & T. Co. v. Neale, 78 Cal. 76-79, 20 Pac. 372.

[b] Bona fide offers made for purchase of land are admissible to prove value of land on issue of damages.-Muller v. Southern Pacific etc. Ry. Co., 83 Cal. 243, 23 Pac. 265.

[c] In condemnation proceedings it is error, under Code of Civil Procedure, section 1249, making the value of the land at the date of the summons the measure of damages, as to the to permit a witness to answer Mayne, present value.-San Jose etc. R. Co. v. 83 Cal. 566, 23 Pac. 522.

[d] Value of land cannot be proved by tax assessment list signed by defendant.-San Jose etc. R. R. v. Mayne, 83 Cal. 570, 23 Pac. 522.

[e] Witnesses should not be allowed to give their opinions as to the value of the prop

erty for a particular purpose, but should state its market value in view of any purpose to which it is adapted.-City of Santa Ana v. Harlin, 99 Cal. 538, 34 Pac. 224.

FOR AUTHORITIES FROM OTHER STATES:

See 18 Cent. Dig., cols. 1572-1574, § 541.

§ 116.

Expert Testimony.

[a] Value may be ascertained from expert evidence based on purposes for which land is suitable though never used for such purposes. San Diego L. & T. Co. v. Neale, 78. Cal. 68, 69, 20 Pac. 372.

[b] Expert opinion of market value should be based on existing business wants of community or such as may be reasonably expected in immediate future.-San Diego etc. Co. v. Neale, 88 Cal. 62, 25 Pac. 977.

[c] Experts should support their estimates by description of property, giving location, surroundings and advantages for particular uses. San Diego etc. Co. v. Neale, 88 Cal. 62, 25 Pac. 977.

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