217 P. 536 | Cal. Ct. App. | 1923
The petitioner in case No. 4345 applies for a writ of certiorari, that this court may review and annul certain orders of the superior court in an action commenced by the county of Los Angeles to condemn land of the petitioner for road purposes. The orders in this action by their terms permit the county to take immediate possession of the land sought to be condemned, notwithstanding *409 that no judgment of condemnation has been entered, and the compensation to which the owner of the land will be entitled has not been ascertained. The first order was based upon an application of the plaintiff in the action, accompanied by an affidavit received as evidence of the amount reasonably adequate to secure to the owner of the property sought to be taken, immediate payment of just compensation for such taking, etc. The second order declared that the plaintiff had complied with the first order, and thereupon ordered that the plaintiff may take immediate possession and use of the described right of way. Both orders were made ex parte, without notice to petitioner, who was a defendant in the action.
These orders were made pursuant to or in attempted compliance with the provisions of article
[1] Petitioner contends that said section of the constitution as amended violates the fourteenth amendment of the federal constitution (which forbids the state to deprive any person of property without due process of law), if it be held that the section means that possession can be taken without notice upon deposit being made, upon an ex parte order. There is nothing unusual or unknown to the ordinary process of law in the taking possession of property without the consent of the owner, during the pendency of actions which either directly or incidentally contemplate the complete taking of the property; although in such cases, the law always provides security for the owner. But the amount of that security is frequently determined by the court upon an ex parte showing, usually in the form of affidavits. This is constantly done in cases of attachment, in proceedings for appointment of receivers, and other forms of relief. In the present instance, as in some others, the right to obtain further security is given, if it be made to appear that the amount specified in the first order was inadequate. For, as we have seen, it is provided in section 14 of article I of the state constitution that "the court may, upon motion of any party to said eminent domain proceedings, after such notice to the other parties as the court may prescribe, alter the amount of such security so required in such proceedings."
It is our opinion that the decision in Steinhart v. SuperiorCourt,
"The possession and use in terms authorized by the statute, before compensation had been made and while the proceeding was pending, is a taking within the meaning of the constitution, but the requirement of the former constitution, which only provided that private property should not be taken for public use without just compensation, was satisfied by a provision which insured the payment on reasonable terms as to delay and difficulty in the enforcement of the right. Viewed in the light of these facts, the change made in the language by the new constitution becomes significant. The following italicized words were added, and no other change was made in the general provision: 'Private property shall not be taken or damaged for public use without just compensation having been first made toor paid into court for the owner.'
"The purpose of the amendment is perfectly obvious. If the preliminary possession during the pendency of the proceeding is a taking within the meaning of the constitution, it cannot be authorized until the damage resulting therefrom has been judicially determined and the amount has been paid or tendered to the owner."
[2] But, as we have seen, the amendment of 1918, so far as applicable to a condemnation by a county for public use, restores the law to the condition in which it was prior to the adoption of the present constitution in 1879. Therefore, in this instance, the rule that private property shall not be taken for public use without just compensation is satisfied by the provisions made in the amendment, which provisions insure the payment "on reasonable terms as to delay and difficulty in the enforcement of the right."
Nor does this construction of the state constitution bring it into conflict with the constitution of the United States. InTurpin v. Lemon,
Counsel for petitioner have not referred to any case, and we are aware of none, in which the federal supreme court has held that a procedure like that described in the 1918 amendment of article
As we read the petition, counsel are in error in their statement that under the orders in question, the deposits of money were made to the credit of the county; and, also, in their contention that the deposits were not separated as required by law. We think that they were separated in a manner which complies with the rule laid down in Marblehead Land Co.
v. Superior Court,
The petition in case No. 4346 is like that in case No. 4345, except that it relates to separate condemnation proceedings, in which other land is taken, for another road. In conformity with the views hereinabove stated, we think that in each case the petition for a writ of review should be denied, and it is so ordered.
*413Houser, J., and Curtis, J., concurred.