94 P. 1125 | Ariz. | 1908
— Cochise county brought suit under the eminent domain law in the district court of Cochise county to condemn certain land belonging to petitioners for use as a public road. ■ Paragraph 2453, Revised Statutes of 1901, provides that at any time after filing the complaint to condemn real estate the plaintiff may make application to the court for an order permitting him to take immediate possession of the property sought to be condemned; that thereupon the court shall hear testimony as to the probable damages to each owner, and may direct that “upon the deposit of such sums of money as the court or judge may direct, or the execution of such undertakings for the payment thereof upon final judgment in the action as shall be approved by such court or judge, the plaintiff shall be let into the possession and full use of the parcels of land as described in such order for ail the purposes as therein specified. All moneys paid in under the provisions of this section shall be deposited with the clerk and be by him held subject to the judgment upon trial of the action in regular course. And all undertakings executed hereunder shall be made payable to the clerk of said court for the use and benefit of the several parties in interest.” An order of immediate possession was made in that suit pursuant to these provisions. Thereupon the petitioners obtained from this court a writ of certiorari to review the jurisdiction of the district court to make such an order. The petitioners contend that the granting of such an order is violative of the fifth amendment to the constitution of the United States prohibiting the taking of private property for public use without just compensation. The writ was issued, and a return has been made. Respondent, appearing by the attorneys for the condemnor, asked leave to file a demurrer to the petition to be considered by us prior to the consideration of the return. This leave was granted. Inasmuch as the facts disclosed in
Petitioners contend that payment of compensation for property taken under the right of eminent domain must be made at the time of or prior to the taking, although the constitutional amendment does not so require in terms. This contention is adversely determined by decisions of the supreme court of the United States. Cherokee Nation v. Southern Kan. R. Co., 135 U. S. 641, 10 Sup. Ct. 965, 34 L. Ed. 295; Backus v. Depot Co., 169 U. S. 557, 18 Sup. Ct. 445, 42 L. Ed. 853; Sweet v. Rechel, 159 U. S. 380, 16 Sup. Ct. 43, 40 L. Ed. 188; Williams v. Parker, 188 U. S. 491, 23 Sup. Ct. 440, 47 L. Ed. 559. However, it is an essential (as is repeatedly recognized in the opinions in the cases just cited) that compensation shall be adequately provided for before a taking. This remands us to the consideration of the next contention — that paragraph 2453 does not require or contemplate such adequate provision.
The disposition to be made of such money as may be deposited with the court under the provisions of this paragraph is not explicitly clear; nor is the scope of the undertakings which may be made in lieu of the deposit of cash thus clear. The statute predicates the order of possession “upon the deposit of such sums of money as the court or judge may direct or the execution of such undertakings for the payment thereof upon final judgment in the action as shall be approved by such
The exercise of the power of eminent domain being essentially destructive of private rights, subordinating them to the public interest, the fundamental guaranty of just compensation must be secured scrupulously. One who is to be deprived of his property must be secure, not merely in payment of his damages in the event of its permanent taking, but in compensation for the loss resulting from the taking if that prove
It follows that the order of the district court granting immediate possession was without jurisdiction. The demurrer to the petition is overruled, and the order is annulled.
SLOAN and CAMPBELL, JJ., concur. KENT, C. J., dissents.