74 P. 444 | Cal. | 1903
This appeal is from an order dismissing the action, made upon plaintiffs' motion. The action was to condemn a strip of land 60 x 145 feet, for a ferry-landing on the Sacramento River, in Yolo County. There was a prior appeal from the judgment condemning the land for said purpose in which the judgment was affirmed (reported in
"The defendant who is entitled to the said money paid into court as aforesaid, or upon any judgment in such proceedings, shall be entitled to demand and receive the same at any time thereafter upon obtaining an order therefor from the court."
No such order was asked for by defendants. They could not get it without abandoning all the defenses they had to the action, except as to the sufficiency of the damages awarded; and such other defenses were not abandoned, but were pressed upon the motion for new trial, and in this court upon the appeal. If they had applied to the court for an order directing the clerk to pay over the money, it could not have been granted pending the motion for a new trial, or at any time after the appeal was taken until the judgment was affirmed or the appeal dismissed. The court had no power to make the requisite order for the payment of the money, the judgment having been suspended by the appeal, which was a refusal to accept the money, or to treat the judgment as a final determination of the rights of the parties, though it was in form final. Judgment in the court below was entered June 21, 1898, and the appeal was decided December 3, 1901, and became final January 2, 1902, a period of three and a half years after judgment in the court below. Such delay may have furnished in this case, and might in many others, sufficient reasons for an abandonment of the enterprise. During all that time defendants were protesting against the judgment, *49 and when plaintiffs finally relieved them from what they insisted was a wrong, oppressive, and erroneous judgment by dismissing the proceeding, now appeal from the order relieving them from it. The ultimate question, however, is whether the court erred in dismissing the action.
The proceeding in eminent domain is an exercise of the sovereign power of the state, though the state does not appear upon the face of the record as a party. The owner of the land sought to be appropriated to a public use may voluntarily agree with the agent of the state as to price, and convey it to the person or corporation who may desire it for a public use, but in the proceeding under the statute there is no element of contract. It is an adversary proceeding wherein the state appropriates the use of the land to the public, subject only to the requirement of the constitution that the land shall not be taken or damaged for public use without just compensation having been first made or paid into court for the owner. (Const., art. I, sec. 14.) But a plaintiff seeking to condemn land for a public use does not, by bringing the action to condemn, bind himself to take the land and pay the compensation fixed by the court or jury, since it may be so great as to make the proposed use impossible, or the delay in obtaining the right to use the land for the purpose intended may permit another to acquire a competitive use of other lands for the same purpose, and thus make his use undesirable, even if the compensation were reasonable. Hence a plaintiff in such action is conceded to have a right to abandon the proceeding and decline to take the land, the question then being at what stage of the condemnation proceedings may he abandon the enterprise or decline to take the property? Pending the motion for a new trial, and later, pending the appeal, it is clear that plaintiffs were not bound to pay or deposit the damages assessed upon the trial; and it is equally clear by the motion and the appeal that the defendants refused to accept payment, at least until they had exhausted all their resources to defeat the condemnation, and during all that time the plaintiffs had the right to abandon the enterprise and refuse to pay the compensation assessed by the court. It is contended, however, that having deposited the money with the clerk of the court, they could not withdraw it, *50 and that upon the affirmance of the appeal the defendants were entitled to receive it. I think plaintiffs had the right to abandon at any time before the defendants were willing to receive it, or were in a position to demand it. Before the former appeal was decided plaintiffs informed defendants of their intention to abandon the establishment of the ferry, and that, if the judgment should be affirmed, they would move to dismiss the proceeding, and they withdrew the money deposited, except sufficient thereof to pay costs.
It is contended on behalf of appellants that the right of the defendants to the land, or the easement therein, vested in the plaintiffs by the deposit with the clerk, and that there can be no abandonment by the plaintiffs thereafter. But the deposit, I think, under the circumstances, was only a tender, and in such cases the money tendered does not vest in the person to whom it is tendered unless it is accepted. In this case the deposit was not accepted. The defendants persisted in their contention that the judgment was erroneous and invalid, and sought to have it reversed, and could hardly contend that the money or the right to it was vested in them so long as they contended that the plaintiffs had no right to the land. The vesting of the title to the deposit in the defendants is coincident with the vesting of the right to the land for the purposes for which it was sought, but pending the appeal the plaintiffs could assert no right to the land or its use under the judgment which had been stayed and suspended by the appeal, during which time the court was powerless to enforce it; nor could the defendants say, "The right to the money is vested in us, but you shall not have the land." The title to the land does not vest in the plaintiffs until "the final order of condemnation" is made by the court, and a copy of the order filed in the office of the county recorder, "and thereupon the property described therein shall vest in the plaintiff for the purposes therein specified." (Code Civ. Proc., sec. 1253.) Counsel for appellants cites Los Angeles Ry. Co. v.Rumpp,
As to the time when, or within which, the plaintiff in condemnation proceedings may abandon them and decline to take the property, there is a conflict in the authorities; but this conflict relates to the time of abandonment and not to the right to abandon where the statute is silent upon the subject. The constitutional as well as the statutory law upon this subject assumes that the owner of the land is unwilling that it shall be taken for the proposed use, and the provisions of the statute are framed to prevent it from being taken or damaged without just compensation, and not with the view or for the purpose of enabling the owner to speculate upon the supposed necessities of the plaintiff or the public by appeals which not only involve the amount of compensation, but set at large the question whether he had a right to condemn the land at all. Lewis, in his work on Eminent Domain (sec. 656), says: "The weight of authority is, that in the absence of statutory provisions on the question, the effect of proceedings for condemnation is simply to fix the price at which the party condemning can take the property sought, and that even after confirmation or judgment the purpose of taking the property may be abandoned without incurring any liability to pay the judgment awarded."
The author cites in support of the foregoing quotation a very large number of cases from many different states; and later in the section, after citing cases from New York and Nebraska, says: "These cases from New York and Nebraska are, we believe, the only ones which are contrary to the doctrine stated at the beginning of the section."
In Dillon's Municipal Corporations (4th ed., sec. 608) the learned author says: "Under the language by which the power to open streets and to take private property for that purpose is usually conferred upon municipal corporations, *53 they may at any time before taking possession of the property under completed proceedings, or before the final confirmation, recede from or discontinue the proceedings they have instituted. This may be done, unless it is otherwise provided by legislative enactment, at any time before vested rights in others have attached."
This section is cited and approved in O'Neill v. Freeholders ofHudson,
I advise that the order dismissing said action be affirmed.
Gray, C., concurred.
For the reasons given in the foregoing opinion the order dismissing said action is affirmed.
Angellotti, J., Van Dyke, J., Shaw, J.