81 P. 972 | Cal. Ct. App. | 1905
Plaintiff and respondent had judgment, final order of condemnation, and order letting into possession in this proceeding, brought by the district attorney of San Luis Obispo County, under direction of the board of supervisors, as provided by section 2690 of the Political Code, to condemn a right of way for a public road which such board had theretofore determined should be laid out and opened over the lands of defendants and other persons not parties to this action. Defendants appeal from the judgment upon the judgment-roll, from the final order of condemnation upon a bill of exceptions, and from the order staying proceedings and letting plaintiff into possession upon a bill of exceptions; and, in case No. 9, from the order of the court denying a new trial.
The entire record in all of the appeals discloses that defendant McKeen owned a tract of land adjoining a tract owned by defendants Simas and Lawrence; that the center line of the proposed road was the dividing line between said *178 tracts; that the said proposed road continued over lands of the Rice estate, not parties to this action; that after the verdict and judgment, and upon payment into court of the condemnation money, the trial judge, in his chambers adjoining the courtroom, an open door connecting the two, without previous notice being given to defendants of the motion to apply for final order of condemnation, signed such final order, which was immediately filed by the clerk in his office and duly entered; that after such final order was so entered, notice of appeal was given, and a bond for three hundred dollars approved and filed; that thereafter the court, on regular motion, made its order letting plaintiff into possession; that during the progress of the trial defendant Lawrence absented himself therefrom, and no reason therefor being made to appear by proper showing, the court proceeded with the trial. At the conclusion of the oral testimony an order was made permitting the jury to view the premises the subject of litigation under charge of an officer; that upon making such order the court announced that it would not attend such view, and did not. The defendants other than Lawrence consented to such order and action of the court. The attorney for Lawrence, being also the attorney for defendant Simas, objected and excepted on Lawrence's behalf alone to such order and action of the court.
Upon the appeal from the judgment it is urged that the court erred in overruling defendants' demurrer to the complaint, which is claimed to be insufficient in that it did not specify the manner in which plaintiff proposed to construct the road; and upon the appeal from the order denying a new trial error is claimed because the court refused to require plaintiff to state to the jury the manner in which the improvement was proposed to be made. Section 1244 of the Code of Civil Procedure, which undertakes to state what such a complaint shall contain, does not specify this requirement. The proceeding being only for the purpose of acquiring a right of way for a public road, the mere taking of the property, the damage to the remainder by severance alone, questions as to the damage to abutting property on account of subsequent improvement by establishing grades, or otherwise, are matters for determination when such damage is inflicted. To hold otherwise would be to say that before condemnation the supervisors must determine in advance the grades and the *179 manner of improving all public roads as a condition precedent to condemnation, which we do not think is authorized.
Upon these appeals it is further claimed that the complaint was insufficient to state a cause of action, or to authorize the introduction of testimony, because the complaint did not show that the petitioners for the road possessed the proper qualifications under the statute. The qualifications of the petitioners are determined by section 2681 of the Political Code. This section provides that "Any ten freeholders who will be accommodated by the proposed road, two of whom must be residents of the road district wherein any part of the proposed road is situated, and who are taxable therein for road purposes, may petition," etc. It affirmatively appears from the complaint that ten of the petitioners are freeholders who will be accommodated by the road; that two are residents of the road district, who are taxable therein for road purposes. This, in our opinion, complies with the requirement of the section. The contention of appellants is, that, properly construed and read, the section referred to contemplated that the ten freeholders should be taxable in the district for road purposes. If we are to say that the words "who are taxable therein for road purposes" relate to the ten freeholders, then we have a sentence reading: "Ten freeholders who will be accommodated by the road, who are taxable therein for road purposes." This would be meaningless, as it is the district within which the person should be taxable and not the proposed road. That portion of the sentence referring to the two residents cannot be read as a parenthetical clause for the reason above stated. Without such reading, the section must be construed as requiring only two residents of the district taxable for road purposes and the remainder freeholders only.
Various objections and exceptions are made with reference to the complaint and the rulings of the court upon the admissibility of testimony, based upon the theory that the various orders of the board of supervisors made intermediate the filing of the petition and bond and the order to the district attorney, were without jurisdiction and irregular. None of the intermediate orders or proceedings are reviewable in this action. Section 2690 of the Political Code, authorizing this action, provides that such suit shall be determined by the court or jury in accordance with the rights of *180
the respective parties as shown in court, independent of said proceedings before the board. Here, then, is a legislative direction to the court to disregard the intermediate proceedings above referred to. In addition, such orders and proceedings are to be recognized as a final judgment in another proceeding before a competent tribunal and not subject to collateral attack. (County of Sutter v. Tisdale,
Exceptions are urged to the action of the court in refusing judgment upon the pleadings and in denying the motion for a nonsuit. The complaint contains all of the matters required by section 1244 of the Code of Civil Procedure, which section is found in the title and part of the Code of Civil Procedure which by section 2690 of the Political Code is made the procedure in this class of cases. The complaint was sufficient, and the court having found all of the allegations to be true, except that no notice was given to nonconsenting landowners, the motion for judgment on the pleadings was properly denied. The exception above noted, if in any sense material, loses its significance when the record discloses that all of the parties to this appeal appeared at the time and place fixed by the board for hearing the report and participated therein. This was a waiver of notice. (Kimball v. Board of Supervisors,
It is next urged that the final decree of condemnation is void, because made without proof, without a hearing, without knowledge of defendants, without a bond, and not in court. The court having jurisdiction of the action, possessed all *181
power to hear without determining, or to determine without hearing. (Ex parte Bennett,
The right of the court to make the order letting plaintiff into possession pending the appeal is denied. When the money was paid into court it was so paid for the owner, as is required by the constitution. (Spring Valley Water Works v.Drinkhouse,
It is urged on this appeal from the motion denying a new trial that the court erred in denying defendants' application *182
for separate trials and in the refusal of each of defendants' four peremptory challenges. Section 1244 of the Code of Civil Procedure, which controls the procedure in cases of this character, provides (subd. 5): "All parcels lying in the county, and required for the same public use, may be included in the same or separate proceedings, at the option of the plaintiff, but the court may consolidate or separate them to suit the convenience of parties." The discretionary power as to separation being vested in the trial court, and no abuse being apparent, its order will not be reviewed. The reason for the suggestions made in Judson v. Malloy,
There was no error in giving or refusing any of the instructions complained of.
The failure of the court to accompany the jury upon the view is claimed, on behalf of defendant Lawrence alone, as error. The record discloses that Simas and Lawrence were joint owners of the tract; that the latter absented himself from the trial; that at the conclusion of the testimony Simas, one of the joint owners, consented to the view and made no objection to the statement of the court that the judge would not attend the view. No formal request was made for the judge to attend. We perceive no prejudicial error in this failure of the judge to attend the view, whatever may be the effect of a view under section
It is finally urged that the court erred in signing the findings and judgment after counsel for defendant Lawrence had requested time within which to make proof of Lawrence's insanity. The cause had been tried and submitted and verdict *183
returned. The rights of the parties are to be determined as they existed at the time of such submission. (Fox v. Hale Norcross S. M. Co.,
We find no prejudicial error in the record, and the judgment and orders are affirmed.
Gray, P. J., and Smith, J., concurred.
