Gambar halaman
PDF
ePub

The state ntay 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. Hag. gin, 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, 13 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; Moran 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.) 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.)

The provisions of section 1001 of the Civil Code confer upon private 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, it 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.)

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

[merged small][ocr errors]

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 allowed 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.)

L’nder 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 public 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, 63 Pac. 78, 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; 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 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. 12, 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 Am. 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. (Consoli. dated 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

« SebelumnyaLanjutkan »