53 Cal. 223 | Cal. | 1878
The plaintiff is a railroad corporation, and seeks in this proceeding to condemn certain -lands of the defendants, as a site whereon “ to erect and maintain permanent and suitable build
Subd. 4 of sec. 1238 of the Code of Civil Procedure, as amended in 1874—5, provides that the right of eminent domain may be exercised in behalf of the following public uses, amongst others, viz: “ steam and horse railroads ” ; and in defining the powers of railroad corporations, sec. 465 of the Civil Code (subd. 3) provides that the corporation shall have power “to purchase, or by voluntary grants or donations to receive, enter, take possession of, hold, and use, all such real estate and other property as may be absolutely necessary for the construction and maintenance of such railroad, and for all stations, depots, and other purposes necessary to successfully worlc and conduct the business of the road.” Subd. 7 of the same section authorizes the corporation to purchase lands, timber, stone, gravel, or other materials, to be used in the construction and maintenance of its road, and all necessary appendages and adjuncts, or acquire them in the manner provided in Title VII, Part III, Code of Civil Procedure, for the condemnation of lands.” Subd. 9 empowers the corporation “to erect and maintain all necessary and convenient buildings, stations, depots, fixtures,- and machinery, for the accommodation and use of their passengers, freight, and business.” Subd. 4 of the same section authorizes the corporation “to lay out its road, not exceeding nine rods wide, and to construct and maintain the same,- with a single or double track, and with such appendages and adjuncts as may be necessary for the convenient use of the same.”
As we construe the complaint, it avers, substantially, that suitable buildings for workshops for repairing the cars and locomotives of the plaintiff, and for the safely keeping the same, are necessary appendages and adjuncts of the road. The allegation on this point is not, perhaps, as precise and specific as it should have been; but- in the absence of a special demurrer
Subd. 7 of sec. 465 of the Civil Code authorizes the corporation to acquire, by proceedings in condemnation, lands to be used, not only in the construction and maintenance of the road, but also for all necessary appendages and adjuncts. Whether or not workshops for the repair and safe-keeping of the cars and locomotives of the plaintiff are necessary appendages and adjuncts to this road, under all the circumstances to be developed at the trial, and if so, whether the land sought to be condemned is necessary as a site for said buildings, are questions of fact, on which issues may be joined, to be decided at the trial. In some of the States it has been decided that the Court will take judicial notice that workshops for the repair of the engines and cars of a railroad corporation are necessary appendages and adjuncts, without which the railroad could not be successfully operated; and for the purposes of this decision we shall assume, without deciding the point, that such is the law. But assuming, as a general proposition, that some workshops for this purpose are necessary appendages to a railroad, it may be that this railroad is already amply supplied with all the necessary appendages of this character. It may have a sufficiency of workshops for this purpose ; or if not, it may already have sufficient land, conveniently located, on which to erect them. These are facts to be ascertained at the trial, on proper issues framed for that purpose; and as we construe the complaint, it tenders an issue as to these facts ; and we think the complaint is sufficient, and that the demurrer was improperly sustained.
We deem it unnecessary to notice the other objections which were taken to the complaint.
Judgment reversed and cause remanded, with an order to the Court below to overrule the demurrer to the complaint,
McKinstry, J., being disqualified, took no part in the decision.
