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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 advance. (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 present 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 damages, 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 condemned pending the proceeding without first requiring compensation 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.

R. 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. Southern 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,

is not in conflict with this provision. (California Southern R. R. Co. v. Kimball, 61 Cal. 90; Tehama Co. v. Bryan, 68 Cal. 57, 8 Pac. 673; City of L. A. v. Pomeroy, 124 Cal. 397, 57 Pac. 585.)

The provision for just compensation only requires that a certain and adequate remedy be provided by which the owner can obtain his compensation without unreasonable delay; and a law providing for a jury to determine the value, that the money be paid into the county treasury for the owner, to be paid to him when his ownership is ascertained, is valid. (Gilmer v. Lime Point, 18 Cal. 229.)

A municipal corporation has no power to take a lot to which it has no title, which is in the actual possession of another, who claims to be the owner, although he in fact is not, and appropriate it to the use of the public, without paying compensation. (Gunter v. Geary, 1 Cal. 462.)

The property of a citizen cannot be taken from him for public use, unless ample means of remuneration are provided. (McCann V. Sierra County, 7 Cal. 121.)

A municipal corporation cannot take private property for public use without making compensation in advance or providing a fund out of which compensation shall be made as soon as the amount to be paid can be determined. (Colton v. Rossi, 9 Cal. 595.)

The legislature has no power to take the property of one person and give it to another; nor can it be taken for public use, unless compensation to the owner precede or accompany the taking. (Gillan v. Hutchinson, 16 Cal. 153.)

An act directing the governor to take possession of the state prison in the possession of a lessee, without making any provision for compensation, is void. (McCauley v. Weller, 12 Cal. 500.)

The act of 1863, providing for the widening of streets in San Fran. cisco by agreement with the owners. does not deprive the owners of any right or privilege guaranteed by this section. (San Francisco v. Kiernan, 98 Cal. 614, 33 Pac. 720.)

Allowance of Benefits. Prior to the present Constitution, general benefits could be set off against damages, and the owner thus compensated. (California Pac. R. R. Co. v. Armstrong, 46 Cal. 85.)

Under the present Constitution there can be no reduction for general benefits in any case, and section 1248 of the Code of Civil Procedure, which allows such benefits to be deducted in the case of a natural person, which cannot be allowed under the Constitution to a private corporation is invalid. (Beveridge v. Lewis, 137 Cal. 619, 92 Am. St. Rep. 188, 67 Pac. 1040, 70 Pac. 1083.)

Under section 14 of article I of the Constitution, when a right of way is appropriated to the use of any corporation other than municipal, full compensation must be made to the owner irrespective of any benefit from the proposed improvement; and in the proceeding to condemn a right of way for a railroad it is error to allow proof

of benefits which might result from the building of the railroads to the land of defendant not taken. (San Jose etc. R. R. Co. v. Mayne, 83 Cal. 566, 23 Pac. 522.)

Private individuals may condemn land for railroad purposes, and are entitled to deduct from the damages to land not taken the amount of benefits accruing from the improvement to such land. The provisions of section 12 of article I of the Constitution prescribing such deduction are confined in their terms to corporations other than municipal and do not apply to the case of condemnation of private individuals. The fact that the Constitution and statutes have unjustly prescribed two distinct rules of damages, one for corperations and another for private individuals, is a matter with which the courts have nothing to do, the provisions of the law being plain and unambiguous. (Moran v. Ross. 79 Cal. 549, 21 Pac. 958. But see Beveridge v. Lewis, 137 Cal. 619, 92 Am. St. Rep. 188, 67 Pac. 1040, 70 Pac. 1083.)

Compensation in condemnation proceedings should consider not only benefit to remaining land, but also loss which it may sustain. (San Francisco etc. Co. v. Caldwell, 31 Cal. 367. To same effect: California etc. Co. v. Armstrong, 46 Cal. 91; San Diego etc. Co. v. Neale, 78 Cal. 75, 20 Pac. 372. Note citation: 45 Am. Dec. 533.)

An act requiring commissioners, in assessing the value of lands sought to be taken by a railroad company, to make allowance for any benefit that will accrue to the person whose lands are taken, is valid. (San Francisco etc. R. R. Co. v. Caldwell, 31 Cal. 367.)

The increased cost of irrigation which would be caused by the building of a railroad is a legitimate subject of inquiry for the purpose of ascertaining the damage sustained by the owner. (San Bernardino etc. Ry. Co. v. Haven, 94 Cal. 489, 29 Pac. 489.)

Under the former Constitution, where the land taken is a part only of a tract, the difference between the value of the tract without the improvement and with it is the compensation to be made. (San Francisco etc. R. R. Co. v. Caldwell, 31 Cal. 367.)

The defendant is entitled to receive for a strip of land taken for an alley an amount equal to that for which it could have been sold in the open market, on the day of the summons, for cash, after reasonable time taken by the owner to make the sale. (Santa Ana v. Brunner, 132 Cal. 235, 64 Pac. 287.)

The provision of this section, providing for compensation, "irrespective of any benefit from any improvement proposed," is not limited to the land taken, but also to the land not taken, and the damages to the property not taken must be fixed, irrespective of ≈17 benefit which may result from the proposed improvement. Bernardino etc. Ry. Co. v. Haven, 94 Cal. 489, 29 Pac. 875.) The provision of this section, prohibiting any deduction from the damages to land not taken of the amount of benefits accruing from the improvement to such land, only applies to "corporations


other than municipal," and does not apply to individuals. (Moran v. Ross, 79 Cal. 549, 21 Pac. 549. See Beveridge v. Lewis, 137 Cal. 619.)

In a proceeding by a railroad corporation to condemn land for its road, the compensation to be awarded the owner must be ascertained irrespective of any benefit that will accrue to the remainder of his land from the building of the road. (Pacific Coast Ry. Co. v. Porter, 74 Cal. 261, 15 Pac. 774.)

The benefit derived from the proposed improvement cannot be given in evidence or considered as an element of the value of the lands taken. (San Diego L. & T. Co. v. Neale, 88 Cal. 50, 25 Pac. 977; City of Santa Ana v. Harlin, 99 Cal. 543, 34 Pac. 224.)

The court cannot set off the benefits which will accrue to the owner by opening a road against the value of the lands taken. (Ventura Co. v. Thompson, 51 Cal. 577.)


§ 22. Appropriations in aid of corporations. $25. Special legislation prohibited.

26. Sale of stock on margins.

§ 31. Public aid to corporations.

$33. Regulation of telegraph, gas, storage and wharfage rates.


Sec. 22, Art. IV. No money shall be drawn from the treasury, but in consequence of appropriations made by law, and upon warrants duly drawn thereon by the controller; and no money shall ever be appropriated or drawn from the state treasury for the use or benefit of any corporation, association, asylum, hospital, or any other institution not under the exclusive management and control of the state as a state institution, nor shall any grant or donation of property ever be made thereto by the state; provided, that notwithstanding anything contained in this or any other section of this constitution, the legislature shall have the power to grant aid to institutions conducted for the support and maintenance of minor orphans, or half-orphans, or abandoned children, or aged persons in indigent circumstances such aid to be granted by a uniform rule, and proportioned to the number of inmates of such respective institutions; provided further, that the state shall have, at any time, the right to inquire into the management of such institutions;

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