31 Cal. 538 | Cal. | 1867
Lead Opinion
The complaint alleges that the defendant, by its servants and agents, forcibly and unlawfully entered upon the land of the plaintiff and graded through the same a bed for their railroad, and in so doing removed and destroyed certain fruit trees planted and growing upon the land; that the defendant threatens to complete the construction of its road by placing
The defendant justifies the supposed trespass under the Act entitled “ An Act to provide for the incorporation of railroad companies and the management of the affairs thereof, and other matters relating thereto,” passed May 20th, 1861, as amended April 27th, 1863, (Statutes 1861, p. 607; 1863, p. 610.) Judgment was for the defendant, and the plaintiff appealed .after having first moved for a new trial.
Section twenty-two of the Act in question provides that railroad companies may acquire the title to such land as they may need for the purposes of their road. *
Section twenty-three provides that such land may be acquired by condemnation, after a certain mode prescribed in the Act.
Section twenty-four requires that proceedings for that purpose shall be commenced by petition, setting forth certain matters which are specified in that section.
Sections twenty-five to thirty-seven, both inclusive, prescribe how such proceedings shall be conducted. Sections thirty-four, thirty-five, thirty-six and thirty-seven are those with which we have to deal more especially in the present case, and are as follows :
“ Sec. 34. If the title attempted to be acquired by virtue of the provisions of this Act shall be found to be defective from any cause, such company may again institute proceedings to acquire the same, as in this Act prescribed, and at any stage of such new proceedings, or of any proceedings under this Act, the Court or Judge in chambers may, by a rule or order in that behalf made, authorize such company, if already in possession, to continue in the use and possession; and if not in possession, to take possession of and use such premises during the pendency and until the final conclusion of such proceedings, and may stay all actions and proceedings against such company on account thereof; provided, such company*543 shall pay a sufficient sum into Court or give security, to be approved by such Court or Judge, to pay the compensation in that behalf when ascertained.
“ Sec. 35. Upon the report of the Commissioners being filed for record, as above provided for, and upon the payment or tender of the compensation and costs, as prescribed in this Act, the real estate, or the right, title or interest therein described in such report, shall be and become the property of said company for the purposes of its incorporation, and shall be deemed to be acquired for and appropriated to public use.”
“ Sec. 36. Such company shall, within thirty days after the final confirmation of the report as aforesaid, pay or tender the sum of money ascertained and assessed by said Commissioners as and for the compensation of each tract of land described in said report, of which the compensation was ordered by said Court or Judge, to be ascertained and assessed as aforesaid ; and said payment or tender may be made to the person or persons owning said tract of land, or having or holding any right, title or interest therein, according to the amount or extent of the right, title or interest owned or held therein by such person or persons, or said payment may be made to the said Clerk for said persons, and the same shall be deemed and taken as a payment to such person or persons, and shall be as effectual for all purposes whatsoever as if the said sum of money had been personally paid to each and all of the persons entitled thereto.
“ Sec. 37. The said Court or Judge shall, at the time of the ■ payment of the said sum of money to the said Clerk, or at such other time or times as may be ordered, direct and order the same to be paid over to the person or persons who shall, upon satisfactory proof, appear to be entitled thereto.”
By the foregoing provisions it is clear that the Legislature intended that just compensation should be made for land taken for public use and actually paid before the title vests in the railroad company, but that the railroad company should have the right to enter and proceed with the survey and con
The facts of this case, so far as they are needful to the present purpose, are substantially as follows : The defendant filed a petition for condemnation in due form, gave a bond approved by the Judge, and obtained an order authorizing it to proceed with the construction of its road, and to take or continue in the possession of the land for that purpose pending the proceedings. Commissioners were appointed to view the prem-ises and assess the damages. They did so, and filed their report on the 27th of November, 1865. The plaintiff appeared before the Commissioners in person and by counsel. He testified himself as to the damages, and introduced other persons as witnesses. The report of the Commissioners was finally confirmed on the 16th of February, 1866, after a motion made by the plaintiff to vacate it and grant a new trial had been heard and denied. The supposed trespass was committed before and pending these proceedings. This action was commenced on the day before the report of the Commissioners was filed. At that time no compensation for the land had been paid, and, under the statute, the defendant had until the expiration of thirty days from the 16th of February, 1866, to make payment.
The controlling question, and the only one which we deem . it important to notice in extenso, relates to the constitutionality of the Railroad Act so far as it authorizes an entry upon the land before the damages have been paid and the title thereby vested in the corporation.
Several cases are cited by counsel for the plaintiff, decided before and since the passage of the Act in which the Constitution, as is claimed, has received a construction, in view of which we are foreclosed upon the question and compelled to declare the provision in hand repugnant to that clause of the
The first case is that of the City of San Francisco v. Scott, 4 Cal. 114. It was an action for the obstruction of a street in San Francisco. The Common Council had by ordinance extended the street through the land of one Price. In conformity with the provisions of the city charter the damages had been assessed and awarded to Price. The street had been opened and maintained as such for four or five months after the award, when, the damages remaining unpaid, the defendant, as agent of Price, and by his direction, obstructed the street, and the question was whether, under the circumstances, the title to the land had vested in the city so as to render the defendant liable for obstructing the street. The Court, Mr. Chief Justice Murray, said : “ Our Bill of Rights provides that private property shall not be taken for public use without just compensation being made therefor, and it is now the better opinion that such compensation must be made before the citizen can be divested of his rights. It is not sufficient that the law points out the mode by which the damage may be ascertained, and provides the party with a remedy to enforce his rights ; no such obligation can be imposed upon him ; he is entitled to the damages which he has sustained without resorting to a legal tribunal to enforce the payment. The law watches the exercise of this prerogative right of sovereignty with a zealous regard for the rights of the citizen. Admitting all the steps for opening this street were properly and legally taken, (a proposition denied by the appellant’s counsel,) it is evident that the premises in question did not become a public street by virtue of such ordinance until the city had paid or tendered the amount of the assessment to the defendant; in other words, a city ordinance would not divest the title to
By this language we understand the Court to hold merely that the damages must be paid before the title could vest in the city. Whether the city, if its charter had so provided, could have entered upon the land for the purpose of survey or construction before the payment of the damages, upon giving security therefor, was a question not in the case and not con-i sidered. What the terms of the ordinance were does not appear, but from what is said it must be presumed that the city had undertaken to establish the street regardless of the question whether compensation had been made or secured in any manner other than by a simple award.
The next case is that of McCann v. Sierra County, 7 Cal. 121. The action was like the present. The Board of Supervisors of Sierra County had by resolution extended a street or thoroughfare through the land of the plaintiff without having provided any fund for compensation. The Court said : “ The Constitution of California provides ‘ that private property shall not be taken for public use, unless just compensation be made therefor.’ A similar provision is to be found in the Constitution of every State in the Union, and the result of the decisions on this subject may be briefly stated thus : That compensation must be made in advance, or a fund must be provided out of which compensation shall be made, so soon as the amount can be determined. The property of the citizen cannot be taken from him without ample means of remuneration are provided. From this it results that the Act of the Supervisors of Sierra County, in appropriating the property of the plaintiff to public uses, before making provision for paying him the value thereof, was illegal, and that he might resort to a Court of equity to restrain them from interfering with the freehold.”
This language when limited to the conditions before the Court, as it must be, amounts to precisely what was said in t'he City of San Francisco v. Scott. It is but a loose repetition of the language of the Constitution and throws no more light upon the question before us than is emitted by the Constitu
The next case is that of McCauley v. Weller, 12 Cal. 500. It was an action for forcible entry and unlawful detainer. Weller, then Governor of the State, took possession of the State Prison, under an Act of the Legislature, which empowered and directed him to do so in the name of the State, but made no provision for compensating McCauley for his interest in the property, which was a leasehold estate. The Court held that the Act was unconstitutional because it made no provision for compensation neither before nor after seizure, citing the cases already noticed. Upon the question before us it did not and could not have expressed an opinion for the obvious reason that it was not involved in the case.
The next case is that of Bensley v. The Mountain Lake Water Company, 13 Cal. 306. It was an action very much like the present, but it turned upon no such question as that with which we are dealing. It turned wholly upon the question whether the defendant had abandoned whatever rights it had acquired in the land by withdrawing the money which had been deposited in Court as security for the payment of the damages, and delaying any action under the proceedings to condemn for a period of four years, and until the land had increased very much in value, when it undertook to assert its alleged right. It- is true that the provision of the statute under which the proceedings were had were substantially the same as here, (Statutes 1851, p. 438, Sec. 17,) but no point was made as to their constitutionality. The language of Mr. Justice Baldwin, in discussing the question of abandonment,
The next case is that of Johnson v. Alameda County, 14 Cal. 106. It was an action against the county for the value of certain land over which a road had been opened by the Board- of Supervisors. It proceeded upon the theory that the road had been lawfully opened and that the title to the land had vested in the public; but the Court held that it had not, for the reason that the county had not paid for it, and that the land was therefore still the land of the plaintiff.
That no greater latitude should be given to the foregoing. cases than that which we have indicated is suggested, if not demonstrated, by the case of Gilmer v. Lime Point, 18 Cal. 230. The Act under which the condemnation of Lime Point was sought in that case provided that the money should be paid into the County Treasury for the benefit of the owners, and that the Treasurer should be required to give a special bond for its safe keeping, and that when this was done a deed should be made, and thereby the title should become vested in the United States. A point was made as to the constitutionality of the Act in this respect, and the Court held that it was free from objection on that score, citing New York cases in which it was held that compensation need not be paid before entry. (Ib. 260.)
The last case relied upon is that of the San Francisco and San José Railroad Company v. Mahoney, 29 Cal. 112. The ground upon which it is claimed that it is conclusive of the present question is of the same character as that relied upon in connection with the other cases already noticed. It is sufficient to say that the point here made was not made in that case, and was not considered.
The right of eminent domain necessarily exists under every form of government. It is the right to take private property, either real or personal, and appropriate it to public use whenever the exigencies of the public cannot be adequately met and provided for in any other way. Like the cognate power of taxation, it is indispensable and the Government takes it by the law of its creation. But its exercise, except upon terms of equitable compensation, would be onerous and oppressive, and in view of the objects for which Governments are organized, to secure life, liberty and property—it ought not to be exercised except upon those terms, for it is a power to destroy what the Government is also bound to protect. Hence in the Federal Constitution and in every State Constitution, with four exceptions—North and South Carolina, New Hampshire and Arkansas—the Government is required to make just compensation for private property taken for its use. Owing to the absence of any restriction upon the exercise of the power it has been held in South Carolina that private property may be taken for public use without compensation. (State v. Dawson, 3 Hill, S. C. R. 100.) The Courts of North Carolina have never gone so far, but they have held that private property may be appropriated before compensation is made, or that compensation is not a condition precedent to the exercise
In view of the proceedings usually resorted to for the purpose of ascertaining the amount of compensation, important enterprises demanded by the public necessities may be delayed and crippled without any very substantial reason, if compensation must be made before any use of thé property can be had. In time of war, and perhaps under other public exigencies admitting of no delay, an immediate seizure may be imperatively demanded by the necessities of the public, and if so a rule which exacts compensation before seizure would be a practical denial of the power in cases where its exercise is most needed. We must presume that these considerations were present to the minds of the framers of American Constitutions when dealing with the power of eminent domain. Regarding it on the one hand as a sovereign and imperial power of onerous and oppressive tendencies, and on the other hand as an indispensable power, the reasonable exercise of which upon terms of equitable compensation must become needful to the public good—at all times paramount to that of individuals—they must be presumed to have sought a rule for
The language of our Constitution is general and makes no distinction between cases. It must therefore be read as exacting compensation in advance in all cases, no matter how great the emergency, or in none. If the former reading is to be adopted the Government cannot even in time of war touch the property of the citizen without first paying for it; and in ■time of peace neither the Government nor corporations acting as its agents can enter upon the construction of public improvements, however urgently they may be demanded by the necessities of the public, until after long delays which may result in serious detriment to the business and general prosperity of the country, notwithstanding the fact, which is patent to every one, that the rights of the citizen may be otherwise amply secured. If such is the true reading, it must be admitted that the framers of the Constitution have succeeded effectually in guarding the rights of the citizen ; but it must be further admitted that in doing so they have gone much further than was necessary to accomplish all that was requisite in that direction, and have adopted a rule which in many cases may operate to the detriment of the public good without any substantial advantage to the citizen.—a result not intended, if they were influenced by the considerations above suggested and which would naturally occur to their minds.
The practice of taking private property for public use, before payment therefor was actually made, prevailed, it is believed, before the Revolution of 1776. It certainly has since in many of the States of the Union, as will appear hereafter, under constitutional provisions the. same as ours, and without just complaint, so far as is known. Had it been the intention to establish a different rule in this State, it is but reasonable to suppose that the framers of our Constitution would have followed the example of Kentucky, Ohio and other States, by expressing the intent clearly, and would not
In a large majority of the American Constitutions the restriction upon the exercise of this power is couched in the brief and general language employed in our own—“ Nor shall private property be taken for public use without just compensation,” which does not, at least in terms, require compensation to be made in advance. But in some the restriction is defined with more particularity. The language of the Constitution of Kentucky is: “ Nor shall any man’s property be taken or applied to public use, without the consent of his representatives and without just compensation being previously made to him.” The Constitutions of other States also require compensation to be made in advance. The Constitution of Ohio discriminates between cases, and provides that compensation shall be made in advance only in certain Cases, leaving the Government to provide for the payment of compensation in other cases after the seizure. Its language is as follows: “ Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency imperatively requiring its immediate seizure, or for the purpose of making or repairing roads which shall be open to the public without charge, a compensation shall be made to the owner in money; and in all other cases where private property shall be taken for public use, a compensation therefor shall be first made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.” Here the whole subject seems to be provided for, leaving but very little to the discretion of the Legislature.
The language of the Constitution of Indiana also discriminates between cases : “ No man’s property shall be taken by law without just compensation, nor, except in case of the State, without such compensation first assessed and tendered.”
Contrasting the language of our Constitution with that of the Constitutions of Kentucky, Ohio and Indiana, there would
The charter of the Buckfield Branch Railroad, a corporation in the State of Maine, contained a clause to the effect that damages for taking private property for its use should be ascertained and paid as provided in the statute in relation to highways. Under that statute the corporation was authorized to enter upon aud take possession of such land as it required, upon giving security, if required, for the payment of such damages as might thereafter be awarded by a jury impanelled for that purpose. The constitutionality of this provision of the statute arose in the case of Cushman v. Smith, 34 Maine, 247, and the conclusion was reached that it was not repugnant to the Constitution, which, in the respect under consideration, is the same as ours. The conclusions reached by the Court are thus summed up by Mr. Chief Justice Shepley, by whom the opinion of the Court was delivered :
“ 1. The clause in Constitutions, which prohibits the taking of private property for public use, was not designed to operate, and it does not operate, to prohibit the legislative department from authorizing an exclusive occupation of private property temporarily, as an incipient proceeding to the acquisition of a title to it or to an easement in it.
“ 2. It was designed to operate, and it does operate, to prevent the acquisition of any title to land or to an easement in it, or to a permanent appropriation of it, from an owner for public use, without the actual payment or tender of a just compensation for it.
“ 3. That the right of such temporary occupation as an incipient proceeding, will become extinct by an unreasonable*554 delay to perfect proceedings,- including the actual payment or tender of compensation to acquire a title to the land or of an .easement to it.
“ 4. That an action of trespass quq,re clausum may be maintained to recover damages for the continuance of such occupation, unless compensation, or a tender of it, be made within a reasonable time after the commencement of it.
“ 5. That under such circumstances an action of trespass, or an action on the case, may be maintained to recover damages for all the injuries occasioned by the prior occupation.”
A like construction has been placed upon this provision of the Constitution in Few York, Pennsylvania, Indiana and Michigan ; and doubtless in other States also. (Bloodgood v. Mohawk and Hudson River Railroad Company, 14 Wend. 56; Smith v. Helmer, 7 Barb. 416; Mayor and Aldermen of Pittsburg v. Scott, 1 Penn. St. R. 309; Hawkins v. Lawrence, 8 Blackf. 266; Rubalton v. McClure, 4 Blackf. 505; Green v. Michigan Southern Railroad Company, 3 Mich. 496.)
If, as claimed by the appellant, the Constitution is to be read as requiring compensation to be made in advance of the taking, a further question then arises as to what is the taking in the sense of the Constitution and the statute. When can it be said that the act of taking has transpired ? Has it transpired when an entry for the purpose of survey and selection has been made; or when an occupation for the purpose of construction has been taken ; or has it transpired only when the last act has been performed, which, under the mode of condemnation adopted, is required to transfer the title or subject it to the servitude ? Upon this question at least the Constitution is silent, except so far as its will is indicated by the naked import of the word “ taken.” The provision requiring compensation presupposes that certain proceedings will have to be taken for the purpose of enabling the Government, or its agent, the corporation, on the one hand, to determine whether the property will be required, and on the other, to enable the Government, or the corporation and the individual,
So, whether we read the Constitution as exacting compensation before the taking, or as permitting the taking before compensation is made, the result would seem to be the same so far as the validity of the present statute is concerned. But we are of the opinion that the latter is the proper reading. It certainly is sustained by very high authority, as we have seen. At least, in view of the fact that the Constitution does not, either in direct terms or by unavoidable inference, require compensation in advance, and in view of the further fact that if it did so the power of eminent domain might be, as we have seen, practically denied to the Government in the hour of its greatest need, as in the case of war or other great and sudden emergencies admitting of no delays for which the framers of the Ohio Constitution were so careful to provide; and in view of the further fact that in the present day and generation the exercise of the power of eminent domain may be instrusted to the Legislature without reasonable apprehension of abuse; and in view of the further fact that the Ian
Judgment affirmed.
Concurrence Opinion
After a careful examination of the judicial decisions in those States, the Constitutions of which contain the provision, “ Nor shall private property be taken for public use without just compensation,” in language substantially identical with that of our own, I am satisfied that, under the construction established, it is not necessary that the compensation should be actually ascertained and paid previous to an entry for the purpose of appropriating the property—previous to the actual preliminary taking. I am further satisfied, upon a critical examination of the cases, that there is far less conflict upon the point than I had been led to suppose from a cursory reading of the decisions. This provision in the Constitution of New York, which is substantially like ours, was discussed in several early cases, and was construed in Bloodgood v. M. and H. R. R., 14 Wend. 51. In that case it was expressly held, that this provision of the Constitution did not require the compensation to be actually paid, before entering upon and taking possession of the property. This case was reversed by the Court for the correction of errors, on a question of pleading, depending upon a construction of the provision in question, and the arguments of the Chancellor and those Senators who delivered opinions, are very cogent to the effect, that the Constitution requires the compensation to be ascertained and
One of the points really decided in the case, is, that the actual payment or tender is not required prior to the taking, but that a fund, or means must be provided, by which compensation shall be assured with reasonable certainty, and without unreasonable delay. And this is by far the strongest case
The question is examined in a very exhaustive and able opinion in Cushman v. Smith, 34 Maine, 248, cited by my associate, and the Court gives the provision in question a less restricted construction than is adopted.in the arguments by the Chancellor and Senators, who expressed opinions, in the Court for the correction of errors in the case cited from 18 Wendell. Cushman v. Smith was affirmed after a change in the bench, in Nichols v. Sorn and K. R. R. Co., 43 Maine, 358; and Davis v. Russell, 47 Maine, 445. In Indiana the construction has been fully as liberal as in Cushman v. Smith. (Rubalton v. McClure, 4 Blackf. 507; Hawkins v. Lawrence, 8 Black. 268; McCormick v. Pres. and Trus. Town of Lafayette, 1 Cart. 52.) A similar construction was given to a similar provision in the Constitution of Ohio of 1802. (Bates v. Cooper, 5 Ohio, 118; Kramer v. Clev. & Pitts. R. R. Co., 5 O. St. R. 144.) The Constitution of Ohio has since been amended. In Michigan a similar construction has been adopted. (Green v. M. S. R. R. Co., 3 Mich. 501.) In Wisconsin the same construction, with the limitations indicated in the opinions in Bloodgood v. M. & H. R. R. Co., 18 Wend., is intimated, though not directly decided, in Norton v. Peck, 3 Wis. 724; Shepardson v. M. & B. R. R. Co., 6 Ib. 613; and Powers v. Bears, 12 Ib. 220. In Mississippi the provision is “ compensation first made therefor,” and the Courts rest their construction on the word “ first.” (Thompson v. Grand Gulf R. & B. Co., 36 Miss. 314.) So, also, the Constitution of Maryland requires the compensation to be “ first paid or tendered.” (Stuart v. Mayor and City Coun. of Balt., 7 Md. 500.) The provision in the old Constitution of Iowa was similar to ours, but it seems to have been thought necessary to amend it, and
The statute, under which the proceedings in question in this suit were had, makes minute provision for proceedings to condemn lands, by which the parties are to have notice and an opportunity to be heard. Section thirty-four provides that “ at any stage * * * of any proceedings under this Act, the Court or Judge in chambers may, by rule or order in that behalf made, authorize such company, if already in possession, to continue in the use and possession ; and if not in possession, to take possession of and use such premises during the pendency and until the final conclusion of such proceedings, and may stay all actions and proceedings against such company on account thereof; provided, such company shall pay a sufficient sum into Court, or give security, to be approved by such Court or Judge, to pay the compensation in that behalf when ascertained.” I do not think, in view of the decisions on the subject, we can say, as a matter of law, that this is not a sufficient provision for compensation to justify the preliminary entry and occupation, in connection with the further provision that the payment shall be actually made within thirty days after the amount is ascertained, and that, till payment, the land shall not be deemed to be finally taken. It cannot be doubted that payment of a sufficient amount into Court would be a sufficient provision of a fund. The only doubt that can be suggested on this point, is, as to the alternative provision for security to be approved by the Judge. The nature of the security is not prescribed. It must be approved. The parties would doubtless be heard, and the Judge, it must be presumed, would faithfully discharge his duty. It is true that personal security might be taken, apparently ample, which
The security required by the statute was given in this case, and I cannot say, as a matter of law, that compensation was not provided for within the rule established by the decisions, so far as to justify the temporary occupation pending the proceeding to ascertain the amount of compensation, and preliminary to a permanent appropriation.
I confess that I find the settled construction of the clause in question not in harmony with my preconceived ideas upon the subject; but it has received the approbation of many distinguished jurists, and, upon the main and vital point a critical examination really discloses no conflict in the decisions. A few Judges, out of the great number who have had occasion to pass upon the question, have thought the construction a little strained, but have acquiesced in the rule established by their predecessors. The peculiar phraseology of the provision leaves it open to the construction given, and, if as an original
I agree with my associate that, although there are dicta in the decisions of our own State not in accordance with the conclusions now attained, the question has never before been decided.
But.it is not my purpose to again traverse the entire ground so thoroughly and ably covered by my associate, and I leave the matter here. I think the judgment should be affirmed.
Dissenting Opinion
I dissent.