| Cal. | Jul 1, 1857
delivered the opinion of the Court—Murray, C. J., concurring.
The plaintiffs applied to the District Court under the act of 1853, providing for the incorporation of railroad companies, for the appointment of commissioners to assess the damages suffered by defendants, by reason of laying a railroad track over lands occupied and claimed by them.
Commissioners were appointed, and after investigation filed their report, specifying the amount to be paid to each defendant, stating separately the damages assessed in each case, as the value of the land appropriated by plaintiffs. They also reported that the land in possession of defendants was claimed by certain third persons, who were not parties to that proceeding.
The amount assessed having been paid into Court, was distributed in accordance with the report, except that portion which was assessed as the value of the land taken by the com
It was no part of the duty of the commissioners to investigate and report upon the defendants’ title to the land they occupied. It was not intended that title to lands should be tried in such proceedings. The defendants being in actual possession, and claiming title, are presumed to be the owners of the land. Hutchinson v. Perley, 4 Cal. Rep., 33. And being in possession, were entitled to compensation before their lands could, be taken for public use. See Gunter v. Geary, 1 Cal. Rep., 465.
Judgment is reversed, and the Court below instructed to cause distribution of the funds to be made in accordance with the report of the commissioners.