77 Cal. 28 | Cal. | 1888
This is an application for a writ of mandate. The San Diego Land and Town Company, a corporation, commenced an action against the petitioners here, to condemn and take for public use certain real estate in the county of San Diego. Such proceedings were had in the cause for condemnation that a judgment for the sum of $100,575.90 was awarded petitioners as compensation for said land. Pending the proceedings, and before any compensation was made, said corporation, without leave or license from petitioners, and without right or title, entered into possession of said
1. The superior court in which the proceedings for condemnation were pending had authority to prevent the plaintiff therein from taking possession of the land sought to be condemned until an order therefor was made by the court. (Code Civ. Proc., sec. 1254.) Possession having been taken pending the proceeding, and in advance of such order, the court was authorized to make the order of April 16th, requiring the possession to be restored to the owners, the petitioners herein. (In re Bryan, 65 Cal. 375; Const. Cal., art. 1, sec. 14.)
2. Did the appeal entitle the corporation to a stay of proceedings under section 945 of the Code of Civil Procedure? The order in question required the delivery of possession of real property. That section provides that an appeal from such an order shall not stay execution unless a written undertaking, as therein specified, shall' be given. In the present case such an undertaking, duly approved, was given. It would seem that the converse of the proposition must be true, and that, if the