Pacific Coast Railway Co. v. Porter, 74 Cal. 261

Pacific Coast Railway Co. v. Porter

74 Cal. 261 | Cal. | 1887

Hayne, C.

This was a proceeding to condemn a strip of the defendants’ land for the purposes of the plaintiff’s road. The cause was tried by a jury, who rendered a verdict, and judgment was entered thereon, and on the additional findings of the court condemning the said land, and decreeing that the plaintiff pa)r to the defendants Uriah and Fanny Porter,—1. The sum of seventy-five dollars, adjudged to be the value of the land taken; 2. The sum of eight hundred dollars, as damages to the remainder of the land; and 3. .The sum of two hundred and seventy-five dollars, cost of fencing, *262and cattle-guards, which, however, the plaintiff was given the option to build at its own expense. The plaintiff ap- ■ peals from that part of the judgment directing payment to the said defendants.

1. It is argued for the appellant that evidence should have been admitted of the benefits accruing to the remaining land, and that such benefits should have been deducted from the amount of damage assessed. But the constitution expressly provides that “ no right of way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation.” ' (Art. 1, sec. 14.)

Under this provision, the benefits supposed to result to the remainder of the land cannot be considered. An exception to this rule is provided when the corporation for whose use property is taken is a “ municipal corporation.” The cases of Butte County v. Boydston, 64 Cal. 110, and Tehama County v. Bryan, 68 Cal. 57, fall within this exception. For,' as is well said by respondent’s ' counsel, the word “municipal,” as used in the provision, refers to such corporations as are for public government, and therefore includes counties. • Unless the eases mentioned proceed upon this ground, we do not see how they can be sustained.

2. It is claimed that under section 1249 of the Code of Civil Procedure the compensation and damages should have been assessed at the date of the issuing of the summons, and that the verdict of the jury was as to “ the present value of the strip of land,” etc.

This seems to verge close to those criticisms upon the form of the verdict which are to be made in time to admit of correction. (Algier v. Steamer Maria, 14 Cal. 170, 171.) But without reference to this rule, it seems to US' that the verdict did relate to the time of the issuance of the summons. The verdict is to be con*263strued with reference to the issues made by the pleadings; and the issues made by the pleadings ordinarily relate to the time of the commencement of the action or proceeding, which in this kind of case is identical with the issuance of the summons. Section 1243 of the code provides that the proceedings "must be commenced by filing a complaint and issuing a summons thereon Under this language, the proceedings were not commenced until the summons was issued. (Compare Flandreau v. White, 18 Cal. 639; Green v. Jackson Water Co., 10 Cal. 374.) In the case before us, the complaint was filed and the summons issued on the same day.

We therefore advise that the part of the judgment appealed from be affirmed.

Foote, C., and Belcher, C. C., concurred.

The Court.—For the reasons given in the foregoing opinion, that part of the judgment appealed from is affirmed.