Gilmer v. Lime Point, 19 Cal. 47

Gilmer v. Lime Point

19 Cal. 47 | Cal. | 1861

Baldwin, J. delivered the opinion of the Court

—Field, C. J. and Cope, J. concurring.

We take a different view of this case from that of the Court below. These proceedings for the condemnation of land are to be regarded as those of a special inquisition, and though taken under the Act of 1859, by the District Court or Judge, yet are to be construed, not by the general rules applicable to Courts of general jurisdiction, but as the acts of a Court which sits in this matter under a special statutory authority.

We have held that the Act of 1859 is constitutional. The condemnation of the land can only be made in pursuance of the provisions of the statute, the title coming to the United States through a compliance with its requirements. Though the State possessed the power to declare that the land should be taken for public uses upon other and different terms and conditions than those set out in the act, it is enough to say that it has prescribed the particular conditions given in the statute, and that these must be followed before a title can vest.

The act provides that whenever it shall be made to appear upon the application of any authorized agent of the United States, that the United States are desirous of purchasing any tract of land for the particular purposes specified in the Act, and that" the owners, from disagreement in price, etc., refuse to convey said lands to the United States, it shall be the duty of the Judge to give notice, etc., and it is provided that the parties may come in and contest with the United States the purchase.

We think that this act does not give an unqualified right to the United States to cause this forced sale, or to condemn the land, but only a right qualified by the existence of the particular fact recited, to wit: In this case, by the disagreement between the United States and the owners as to the price. The process of taking land from the citizen without his consent is a harsh measure of governmental necessity, and the Legislature evidently designed that it *59should only he exercised when other and more usual means have been sought to obtain the property on fair terms, and these have failed. If the parties are willing to sell, the land cannot be condemned if the Government is willing to give what is asked. The Government must have first sought to buy the land before it can be seized. There can be no disagreement until the Government indicates its will or willingness to purchase on some specific terms; it must offer to buy for a stated price, and if the owner declines the offer, then the Government has its remedy. Here the defendant sets up, that not only was there no disagreement as to the price, but the Government agreed with him as to the price, and contracted to purchase at that price. If this be true, the whole foundation of the proceeding falls. This principle is not only supported by the reason of the thing, but it has the express sanction of a decision of the Supreme Court of New York upon a statute of that State, similar in its language, applicable to turnpike corporations. (See Gilbert v. Columbia T. R. Co., 3 Johns Cases, 108.) The Court say: “ This is the case of a special power granted by statute, and affecting the property of individuals, which ought to be strictly pursued, and appear to be pursued on the face of the proceedings. (4 Burr, 2244, Comp. 26 ; 1 Burr, 387 ; 7 Term Rep. 363.) This is an established rule, and it is important that it should be maintained, especially in cases which so materially interfere with private rights. It does not appear that any disagreement existed between the parties, or that, in consequence of any disagreement, the company applied to a Judge, both of which were requisite to authorize the appointment of Commissioners. The disagreement and consequent application were the foundation of the whole proceedings, and without them the Judge could have no jurisdiction in the case. As they do not appear, we are not to intend they existed.”

The argument of the attorney of the United States is, that by the true construction of the Act of 1859, the application of petitioner need only state these facts in limine to authorize the Judge below to act in giving notice, and that no proof of these facts is required, nor are they traversable. We think differently. The first section does not in its language require such construction. It merely states what the contents of the petition or application shall. *60be to authorize these initiatory proceedings; but it does not limit the force or use of the averments to the mere purpose of a statement. The first order determines nothing, but the parties are summoned to contest the purchase, etc., and this involves a right to contest the averments of the pleading which set up a right to condemn the land.

If such construction as that insisted on be given, the result would be, that if the land of one averred to be a minor, or person under disability to contract, were sought to be condemned, he could not show that he was not under disability, nor, probably, could a defendant show that the person starting the proceeding was not an agent of the United States, or that the United States had already bought the land under a valid executory agreement.

Such statutes are in derogation of the general right of the citizen and of common law modes of procedure, and are to be strictly construed. We held this in Mountain Lake Company v. Bensley, 13 Cal. See also 4 Hill, 76 ; 7 Id. 9 ; 4 Pet. 162, and the numerous cases cited in note to 3 Johns Cases, supra.

There is nothing in the other errors assigned—as to refusal to permit proof of the contract to establish the value of the land, or rejecting proof of value of the land to the Government as a fort.

The judgment of the Court, condemning the land, is reversed; and the Court below will proceed to retry the case upon the matter of the demurrer and answer, setting up this contract with the Government, and this denial of any disagreement in price.

These matters constitute separate issues, and are wholly independent of any question of the value of the land.

If they should be found for the Government, then it will be time enough to decide whether the verdict assessing the value should be disturbed. As the question has not been argued, we decline expressing any opinion upon it.

Judgment of condemnation reversed and cause remanded for further proceedings in pursuance of the principles of this opinion.