90 P. 545 | Cal. | 1907
This is an application, on notice, by a reclamation district and the members of the board of trustees of said district for a writ of prohibition, restraining the superior court of Sacramento County from proceeding with the trial of an action instituted in said court by the Sacramento Southern Railroad Company, a corporation, for the condemnation of a strip of land 1,349.6 feet long, situate in said county, for the purposes of a railroad right of way. According to the allegations of the complaint in such action, the Onisbo Improvement Company, a corporation, is the owner of the strip of land and of the larger tract of which *265 it forms a part, while one P.J. van Loben Sels and the People's Savings Bank claim an interest therein. It further appears from the complaint in such action that the greater part of such strip is subject to an easement for a levee already constructed and now maintained thereon, known as the levee of reclamation district No. 551, which levee is under the control of the trustees of said district, and that it is designed to construct the proposed railroad on said levee in part, it being alleged that said levee easement and the easement sought in the action can coexist without in any manner interfering with each other. All of the persons interested in said land, including the reclamation district and its trustees, are parties defendant in such action. A demurrer to the complaint has been overruled, and an answer has been filed, and the trial court will proceed with the trial of the action unless restrained.
Plaintiffs' claim is that the court has no jurisdiction to try, or otherwise entertain, said action, for the reason that there is no authority in law by which a railroad corporation is empowered to condemn or use the levees of a reclamation district, or to make a joint public use thereof, and because such use will necessarily obstruct the trustees of the district in the control, management, alteration, repair, and protection of the works of reclamation of said district.
This case differs from the ordinary case in which it is sought to subject private property to a second public use alleged not to be inconsistent with a former public use already imposed, in that it is here attempted to permanently appropriate to the second use in common with the first use, not only the property of the owner of the land, but also the permanent structure constituting public property, placed and maintained thereon by the first taker in the exercise of its easement. The levee itself was constructed by the reclamation district on the right of way procured for that purpose, and is a part of the "works" which the trustees of the district are authorized to take materials for and "construct" for the purpose of reclaiming and keeping reclaimed the land within the district. (Pol. Code, sec. 3454), and is "public property, acquired by the agents of the state for state purposes."(Reclamation Dist. v. County of Sacramento,
So far as the reclamation district is concerned, the object of the action in eminent domain is to subject its right of way for levee purposes, and the levee constructed thereon, to a limited use on the part of the railroad company for right of way purposes for the railroad, such use to be in common with that of the district. We think that under some circumstances such a use of the levee right of way and the levee itself might be acquired by a proceeding in eminent domain.
Section 1240 of the Code of Civil Procedure enumerates the kinds of property, "which, for the purpose of the exercise of eminent domain, shall be deemed to be private property," which may be taken. (Marin County Water Co. v. County of Marin,
There is no warrant for restricting the application of this provision to property owned by private persons and corporations. Section 1240 of the Code of Civil Procedure is not confined to property so owned, nor even to property owned by the state as a private proprietor which may be condemned for public use in the cases provided in subdivision 2 thereof. It was held in MarinCounty Water Co. v. County of Marin,
The easement of a reclamation district for its levee constitutes a "right of way" within the meaning of that term as used in subdivision 5 of section 1240 of the Code of Civil Procedure. It is so characterized in the sections of the Political Code relating thereto. (Secs. 3450, 3471. See, also,McCarty v. Southern Pacific Co.,
We are unable to see any sound constitutional objection to this provision of our statute, so construed as applicable to levee rights of way. The argument of learned counsel for plaintiffs in this behalf is based upon the fact that statutes of the state vest the full control of the reclamation work of a district, including the planning and constructing of the works, and changes and repairs therein, in the trustees of the district, and that, to the extent of the occupation by the railroad company which may be authorized by a court in eminent domain proceedings, the dominion of the officers designated by statute is necessarily interfered with. But the statute authorizing such judicial interposition is enacted by the same legislative body that defined the powers and duties of reclamation district trustees, and no good reason appears why the legislative department cannot make the power of the trustees subject to such provisions of a decree of eminent domain as may be necessary under subdivision 5 of section 1240 of the Code of Civil Procedure. The power of boards of supervisors in regard to public highways is no less absolute than that of trustees of reclamation districts (see SanMateo Co. v. Coburn,
Where, as here conceded, the subsequent use is not a more necessary public use than that to which the property has been already appropriated, there can, of course, be no such interference with the former use as will substantially or materially affect the efficiency of the reclamation works. As already stated, it is alleged in the complaint in eminent domain that there will be no such interference. We cannot say, as a matter of law, that a limited use, in common, cannot be so regulated that there will be no material interference with the reclamation works.
The conclusion we have reached in regard to the matters already discussed necessarily disposes, in our judgment, of this application for a writ of prohibition. If the legislature has provided that the right of way for a levee, and the levee constituting a structure or improvement thereon, may be crossed or intersected by another right of way, or subjected to a limited use, in common with the owner thereof, when necessary, in the manner most compatible with the greatest public benefit, and least private injury, it can hardly be said that the superior court of Sacramento County is without jurisdiction of the action in eminent domain, simply because the complaint shows that the greater portion of the strip of land 1,349.6 feet in length, sought to be condemned, is already subject to an easement for a levee constructed thereon. It might very reasonably be contended that whether or not a complaint in an action brought to enforce the right of eminent domain shows a case in which the property sought is of such a character that it may be taken at all, is strictly a question to be determined in the exercise of its jurisdiction by the trial court in the condemnation proceedings, subject to review in the ordinary way, and that prohibition will not lie to determine the sufficiency of a complaint in an action belonging to a class of which the superior court has jurisdiction. However this may be, it is certainly enough to preclude the remedy of prohibition, that the complaint shows a case where property of the kind sought to be taken may be taken for the use for which it is sought. Whether or not the facts are such as to justify the taking in a particular case is for the determination of the trial court *270 in the lawful exercise of its jurisdiction, and cannot be determined on prohibition. We are by no means prepared to decide that subdivision 5 of section 1240 of the Code of Civil Procedure, or any other provision of law, would warrant the taking of the levee right of way as a right of way for a railroad simply because it would be advantageous for the railroad company to acquire a roadbed already constructed. The subdivision in question was, of course, not enacted for the purpose of giving the second taker the benefit of structures or improvements of the first taker, but was solely to enable the crossing of an existing right of way by a second right of way to be made, or a limited use thereof to be had, in common with the owner thereof, whennecessary. The necessity here referred to can hardly be said to exist solely because of the existence of a structure of the first taker on the prior right of way that would serve as a roadbed for a proposed railroad. The right of the railroad company under this subdivision in regard to the acquirement of the use of the levee is perhaps no greater than it would be in a case where it was seeking to secure a limited use, in common with another railroad company, of the right of way and roadbed of the latter. It may be that the facts in this regard which may be shown under the issues, made in the eminent domain action, constitute a full defense to such action, under a proper construction of subdivision 5 of section 1240 of the Code of Civil Procedure. As to this, however, we express no opinion, as the question is not properly before us. In fact, we do not wish to be understood as now definitely deciding any question as to the proper construction of subdivision 5 of section 1240 of the Code of Civil Procedure, except in so far as we hold that it is applicable to a levee right of way, and the levee constructed thereon.
The application for a writ of prohibition is denied.
Shaw, J., McFarland, J., Henshaw, J., Sloss, J., and Lorigan, J., concurred. *271