Potter v. Ames, No. 3,127

No. 3,127 | Cal. | Jan 15, 1872

Lead Opinion

By the Court,

Wallace, C. J.:

This is an action of trespass, quare clausum fregit, brought by the plaintiff to recover damages for the digging and injury of his land, done by the defendants, who justify as being the Trustees of the Fifth Township, in the County of San Mateo, in which township the premises are situate.

The defendants justify under certain proceedings instituted before the Board of Supervisors of San Mateo County, altering, or attempting to alter, a public highway in that county, and whereby they claim that a public road was legally opened through the premises of the plaintiff.

The statute of 1867-8, p. 283, concerning roads and highways in the County of San Mateo, provides, in substance, that any person intending to apply to the Board of Supervisors for the alteration of any highway shall give notice of such intention by posting notices that, at some designated regular meeting of the Board, to be held not less than fifteen days thereafter, an application for that purpose will be made, which notice must state, with particularity, the starting point and the course and terminus of the proposed alteration. (Section 2.)

It is further provided that any person owning lands to be affected by the proposed alteration, and who desires to apply for damages in consequence thereof, shall make application by petition to the Board, on the day on which the application shall be made, according to the notice, and that said petition shall set forth the particular road referred to, the amount and character of the land affected thereby, and any other circumstances having relation to the subject of damages to such land, and that, failing to present such petition at the time and in the manner prescribed, he shall be considered as waiving all right to damages, and as dedicating the lands affected by the proposed alteration to the public use as a highway, etc. (Section 4.)

The right of a party whose lands are appropriated to the public use to receive compensation therefor is ' undoubted under the provisions of the Constitution. (Article I, Section 8.) While it is unquestionably competent to the Legislature to provide the several steps to be pursued in the assertion of his claim for compensation, the prescribed procedure must not destroy or substantially impair the right itself. A reasonable opportunity must be afforded him to claim and receive his damages; then, if being so afforded, it be not availed of, the statute may provide that such failure shall constitute a bar to his claim.

I think that the provisions of the statute under consideration, in these respects, are free from constitutional objection, and that, if the steps therein prescribed be observed, the proceedings would be valid.

The first step to be taken is to give the notice, describing, with particularity, the termini and course of the proposed alteration. “ Particularity^ ’ ’ in these respects, is exacted. The reason is, that on the return day of the notice the party whose lands are to be taken must, upon pain of losing his claim, be prepared to present, and must then actually present, a petition to the Board, describing the particular road involved in the proceedings, and setting forth the amount and character of his land which will be affected by the taking, and other circumstances relating to the question of damages. He is held to particularity in time, subject matter, and circumstances. Of course, if the notice given be itself radically insufficient—if it be merely general, and practically indefinite as to the land to be taken, the owner cannot comply with the requirement of the statute—and being unable to comply, his property is taken without just compensation, which is just the thing the Constitution forbids to be done. The notice given in initiating the proceedings under consideration would seem to be insufficient on its face. The proposed alteration in the road is to run northerly from one point to another; but it is also to run “over the most practicable route for a road,” and what route that means cannot be known to the owner until after his day to present his claim for damages has already passed by—not till the viewers shall have made their report. Then he can learn, for the first time, how much damage he is to sustain, and how much he might have claimed had he known it in time. In other words, he can then learn the extent of. the loss he has sustained.

However, even if the sufficiency of the notice of application here on its face were debatable, the Court below has expressly found that the plaintiff" could not ascertain from it the amount or character of his land which would be affected by the proceedings.

Judgment reversed, and cause remanded, with directions to render judgment for the plaintiff on the findings.

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Concurrence Opinion

Rhodes, J.,

concurring:

I concur in the judgment.