86 Cal. 246 | Cal. | 1890
— This is an action to condemn a right of way for a railroad across a piece of swamp and overflowed land owned by the defendant. Judgment of condemnation was entered in the court below, from which, and from an order denying a new trial, the defendant appeals. The only question involved in the case relates to the measure of compensation which the defendant was entitled to claim and receive for the strip of land taken. The facts affecting this question are as follows: In the year 1860, one Blatehley made application to purchase from the state a tract of swamp and overflowed land situate in Marin County, and known as “ Survey No. 55.” He paid twenty per cent of the purchase price, and one year’s interest on the remaining eighty per cent thereof, and in April, 1861, received a certificate of purchase. He never made any further payments of interest or principal. In July, 1882, he assigned his certificate of purchase to the defendant, and in January, 1883, the latter obtained from the state a patent for the land. In 1876, the Sonoma and Marin Eailroad Company, the grantor of the plaintiff, constructed a road-bed across the said land, and in 1878 laid its track thereon. Since 1876 the said company and the plaintiff, its successor in interest, have been continuously in possession of the strip so taken, and using it for the purposes of a railroad. Whether Blatehley knew of the construction of the railroad across this land, or whether he consented or objected to its construction thereon, does not appear. It would seem, however, that he must have known of it between the years 1876 and 1882, unless he had abandoned his intention to complete the purchase, or was more than ordinarily careless in regard to his own affairs. Shortly after obtaining his patent, the defendant commenced an
Foote, C., and Hayne, C., concurred.
The Court. — For the reasons given in the foregoing opinion, the judgment and order are affirmed.
