People ex rel. Heyneman v. Blake, 19 Cal. 579

People ex rel. Heyneman v. Blake

19 Cal. 579 | Cal. | 1862

Field, C. J. delivered the opinion of the Court

Cope, J. concurring.

The material questions presented for determination in .this case are: 1st, whether the San Francisco City Water Works became a corporation by the proceedings taken under the Act of April 14th, 1853, providing for the formation of corporations for certain purposes ; 2d, whether, if a corporation, the company became invested by the Act of April 22d, 1858, with the power to condemn private lands in the execution of the purposes of the incorporation; and 3d, whether the latter act, in providing that the compensation to the owners for the lands taken or injuriously affected shall be estimated by Commissioners appointed by the County Judge, instead of by a jury, is constitutional.

1. The first section of the Act of April 14th, 1853, as amended by the Act of April 30th, 1855, provides for the formation of “ corporations for manufacturing, mining, mechanical, wharfing and dockage, or chemical purposes, or for the purpose of engaging in *594any species of trade or commerce, foreign or domestic,” and the first inquiry is, whether the purpose or business for which the company known as The San Francisco City Water Works was formed,' is embraced within the provisions of this section. The company was organized, according to the language of its articles of incorporation, for the purpose of introducing pure fresh water into the city and county of San Francisco, and supplying the inhabitants and the public buildings with the same, and the transaction of such other business relating thereto as might be necessary or proper. The purpose thus declared, it is contended, is not embraced within any of the terms of the act. We do not think so. The language, “ for the purpose of engaging in any species of trade, foreign or domestic,” is sufficiently comprehensive to include companies formed for the purpose contemplated by the company in question. Though the sale of the water to be introduced is not mentioned in the articles of incorporation, it is evident that this was the object which the corporation had in view. It was to deal in water as a matter of business—to furnish the article to consumers upon considerations to be received—that the company was formed. Water, when collected in reservoirs or pipes, and thus separated from the original source of supply, is personal property, and is as much the subject of sale—an article of commerce—as ordinary goods and merchandise. Engaging in the business of furnishing it to the inhabitants of a city for equivalent considerations to be received, is engaging in “ a species of trade or commerce ” within the meaning of the act. Ice companies organized to furnish the inhabitants of a city with ice, and gas companies organized to furnish them with gas, and the company in question organized to supply them with water, all stand upon the same footing. They are engaged “ in a species of trade or commerce,” though not in the technical acceptation of the terms “ trading ” or “ commercial corporations.”

2. The second section of the “ Act for the Incorporation of Water Companies ” of April, 1858, grants to all companies incorporated under the Act of 1853, for the purpose of supplying any city, town or county of the State, or the inhabitants thereof, with pure water, “ the right to purchase or to appropriate and take possession of, and use and hold all such lands and waters as may be *595required for the purposes of the company, upon making compensation therefor,” and provides that the mode of proceeding in cases where the parties cannot agree upon a purchase of such lands and waters, shall be the same which is prescribed by certain sections of the act for the incorporation of railroad companies of April, 1853, except that the proceedings shall be taken before the County Judge of the county where the lands or waters are situated. This section clothed the San Francisco Water Works with ample power to condemn the lands described in the petition to the County Judge, provided they were required for the purposes of the company. The possession of the power does not depend, as contended by the respondent, upon a reincorporation of the company. The sixth section of the act is not mandatory, but permissive only. Its language is that any corporation heretofore formed for the purposes specified in in the act “ shall have the right to reincorporate,” not that it shall be reincorporated in order to become the recipient of the privileges and benefits intended by the act.

Whether the lands in question were required for the purposes of the company was a matter to be determined by the County Judge, upon a proper showing had before him. We do not see anything in the record relating to his action in this respect which impeaches the correctness of his determination. The order of the Board of Supervisors of the city of San Francisco, approved and ratified by the Legislature, conferred upon the company the privilege of laying pipes along the public streets, (Session Laws of 1858, 75) but this privilege does not operate as a restriction upon the right to condemn private lands granted by the Act of 1858, in cases where the purposes of the company require the use of such lands.

There is nothing in the objection that the company only seeks the right and privilege of excavating a tunnel through the land of the respondent, and of running pipes through the tunnel to convey its water, and does not seek to obtain a title to the land. The petition to the County Judge alleges the necessity of constructing the tunnel and acquiring a right of way into and through it, and for that purpose of taking possession of and appropriating a portion of the lands described; and that the company has been unable to agree with the owner for a purchase of the same, and prays for the *596appointment of Commissioners to ascertain the compensation to be made to the owners “ for taking or injuriously affecting ” the lands, and that the same, to the “ extent stated,” may be condemned for the uses of the company. The petition, in this respect, complies substantially with the provisions of the Railroad Act of 1853. That act contemplates that the Commissioners shall ascertain the compensation to be made “ for the taking or injuriously affecting ” the lands. But independent of this, the right to condemn the lands includes the right to condemn any estate or interest therein which may be necessary for the purposes of the company. And even where the lands are in terms taken, it may be questioned whether the title passes absolutely to the corporation. The prevailing doctrine in such cases is, that the title vests only to the extent necessary for the purposes of the incorporation. “ The general course of decisions in this country,” says Redfield, “ coincides with the English common law rule, in regard to the title acquired by the public, by the exercise of the right of eminent domain; that is, that no more of the title is divested from the former owner, than what is necessary for the public use. The owner may still maintain trespass for any injury to the freehold by a stranger. And in regard to railways in particular, it has been repeatedly decided in the different States that they take only an easment in land condemned for their use.” (Treatise on the Law of Railways, 126 ; Hooker v. Utica and Minden Turnpike Company, 12 Wend. 371 ; The People v. White, 11 Barb. 26 ; Giesy v. Cincinnati, Wilmington and Zanesville Railway, 4 Ohio, 308 ; Barclay v. Howell’s Lessee, 6 Pet. 498.)

3. The constitutionality of the provision of the Act of 1858, directing that the compensation of the owners shall be estimated by Commissioners instead of by a jury, is settled by the case of Koppikus v. State Capitol Commissioners (16 Cal. 248). We there held that the clause of the Constitution declaring that “ the right of trial by jury shall be secured to all and remain inviolate forever,” applies only to civil and criminal cases in which an issue of fact is joined, and that where private property is taken for public use it is only necessary that the proceedings to ascertain the value of the property, and the compensation to be made to the owner, be con*597ducted in some equitable and fair mode, to be provided by law, either with or without the intervention of a jury, opportunity being allowed to the owners or parties interested in the property to present evidence respecting its value, and to be heard thereon. And the same rule prevails, whether the question be as to the value of the property taken, or as to the extent of the damages which the owner may sustain from the use made of his property.

It follows from the views we have expressed, that the judgment of the District Court, annulling the proceedings taken before the County Judge is erroneous. That judgment must therefore be reversed and those proceedings affirmed; and it is so ordered.