DORAN, J. Petitioner herein seeks a writ of mandate to compel respondents to enter a judgment dismissing a condemnation proceeding upon motion of petitioner made in the court below pursuant to the provisions of section 1225a of the Code of Civil Procedure, which motion was made after petitioner had filed a notice of abandonment of the said proceedings in accordance with the provisions of the said section of the code above referred to. The notice in question stated that petitioner abandoned the said proceedings as against one parcel of land concerned therein, for which parcel one Frank Honteleone and Lucy Monteleone had appeared as defendants. The notice of abandonment was filed over a month prior to the date set for trial of the condemnation action and the motion for judgment of dismissal was made prior to the trial date.
In opposition to petitioner’s motion for dismissal the defendants above named interposed a “plea of equitable estoppel” based upon the claim, as therein stated, that petitioner, by its complaint in the condemnation proceeding and by its resolution of intention, sought to condemn and take away not only a portion of the defendants’ property, but also certain rights of ingress and egress from defendants ’ said property; that the said rights of ingress and egress had been greatly impaired by physical operations already undertaken by petitioner under an order of immediate possession of property concerned in the condemnation proceeding; and that, in view of the progress already made on the public improvement in question, defendants’ rights above mentioned would soon be destroyed. Further, that petitioner did not propose to abandon the said improvement contemplated in its original resolution of intention, but, to the contrary, was proceeding diligently and rapidly to the completion thereof; and that the motion to dismiss as to the parcel in question was not made in good faith, but for the purpose of vexing defendants with successive experiments in [395]litigation in order for petitioner to arrive at the price it desired to pay; and that the motion for judgment of dismissal was made in order to avoid the full responsibility imposed upon petitioner.under the eminent domain laws of the state. Other statements to the same effect were made by defendants in their said plea. Defendants further contended therein that in the absence of a revocation of the ordinances of intention, or an abandonment of the entire proceedings, petitioner has no right to dismiss as to only one parcel of land under a single and different ownership than that of the other lands in the said proceeding; and that petitioner is bound by the rules of equity to prosecute their condemnation case against defendants to final judgment. The court below denied petitioner’s motion for judgment of dismissal, whereupon petitioner made its present application for a writ of mandate. In their answer to the petition herein respondents adopt the contentions made by the defendants Monteleone in the court below on the motion for dismissal of the condemnation proceeding.
Insofar as here pertinent, section 1255a of the Code of Civil Procedure states: “Plaintiff may abandon the proceedings at any time after filing the complaint and before the expiration of thirty days after final judgment, by serving on defendants and filing in court a written notice of such abandonment. . . . Upon such abandonment, express or implied, on motion of any party, a judgment shall be entered dismissing the proceeding. ...” The section just quoted is included in Title YII of the code, governing proceedings in eminent domain.
In Pool v. Butler, 141 Cal. 46 [74 Pac. 444], at p. 49, it is stated: “The proceeding in eminent domain is an exercise of the sovereign power of the state, though the state does not appear upon the face of the record as a party. The owner of the land sought to be appropriated to a public use may voluntarily agree with the agent of the state as to price, and convey it to the person or corporation who may desire it for a public use, but in the proceeding under the statute there is no element of contract. It is an adversary proceeding wherein the state appropriates the use of the land to the public, subject only to the requirement of the Constitution that the land shall not be taken or damaged for public use without just compensation having been first made or paid [396]into court for the owner. (Const., art. 1, sec. 14.) But a plaintiff seeking to condemn land for a public use does not, by bringing the action to condemn, bind himself to take the land and pay the compensation fixed by the court or jury, since it may be so great as to make the proposed use impossible, or the delay in obtaining the right to use the land for the purpose intended may permit another to acquire a competitive use of other lands for the same purpose, and thus make his use undesirable, even if the compensation were reasonable. Hence a plaintiff in such action is conceded to have a right to abandon the proceeding and decline to take the land, the question then being, at what stage of the condemnation proceedings may he abandon the enterprise or decline to take the property I Pending the motion for a new trial, and later, pending the appeal, it is clear that plaintiffs were not bound to pay or deposit the damages assessed upon the trial; and it is equally clear by the motion and the appeal that the defendants refused to accept payment, at least until they had exhausted all their resources to defeat the condemnation, and during all that time the plaintiffs had the right to abandon the enterprise and refuse to pay the compensation assessed by the court.”
In Southern Pac. R. R. Co. v. Reis Estate Co., 15 Cal. App. 216 [114 Pac. 808, 810], at p. 218, it is stated: “We think it unnecessary to determine the character of right with reference to dismissal which a plaintiff may possess in proceedings of this character after verdict and before final decree of condemnation. That he is entitled to abandon the claim to the property and ask a dismissal before the expiration of thirty days from the entry of the judgment has been determined in Pool v. Butler” (supra). The court in the Southern Pacific E. E. ease assumed, without deciding, that such right of dismissal is within the discretion of the court only, but held that the trial court in there granting plaintiff a dismissal had not abused any discretion. Plaintiff there had moved to dismiss, within thirty days after trial and a verdict fixing the amount of compensation and damages, upon the grounds “that the damages and values fixed by the jury were excessive, and a dismissal of the case was an abandonment by the plaintiff of its claim for the property.” Chief Justice Beatty dissented from the order denying a hearing of this latter case in the Supreme Court, stat[397]ing: “It is not decided, and I do not think it ought to be held, that where the whole controversy in a condemnation case is over the compensation to which the land owner is entitled, the plaintiff has the unqualified right to dismiss the proceeding upon payment of costs after he has subjected the defendant to heavy expenses in addition to court costs in the legitimate effort to prove the loss and damage that he will sustain in consequence of the condemnation sought. This was the main question in the case, but it is left undecided. ...”
In Metropolitan Water District v. Adams, 16 Cal. (2d) 676 [107 Pac. (2d) 618], recently before the Supreme Court of this state, respondents took the position that when possession of the land is taken by a plaintiff under order of court in a condemnation proceeding, the contemner’s right to the property becomes vested, and concurrently the property owner’s right to the payment to him of a sum of money for such taking becomes vested. In other words, that the act of taking possession irrevocably fixes the respective rights of the contemner and the landowner, and that after possession is thus taken of the land, the contemner becomes the vested owner of the land. The court held that such a position could not be sustained, first, because the law does not provide for absolute immediate payment, second, the act of taking possession does not irrevocably fix the rights of the parties, because one of the possible issues in every condemnation case is whether there is any public necessity to take the owner’s land, and should this issue be decided against the plaintiff, the proceeding terminates and the owner is restored to the possession of his land; and lastly, because the plaintiff may abandon the proceeding at any time before the expiration of thirty days after final judgment by serving upon defendant and filing in court written notice of such abandonment. The court then stated: “While the plaintiff by abandoning the proceeding subjects himself to the payment of certain costs and expenses incurred by the defendant, the service and filing of said notice ipso facto terminates the proceeding, except in those rare instances in which the contemner is estopped from availing itself of the right of abandonment.”
Respondents have cited City of Los Angeles v. Deacon 3 Cal. (2d) 641 [46 Pac. (2d) 165], and Times-Mirror Co. v. Superior Court, 3 Cal. (2d) 309 [44 Pac. (2d) 547], in sup[398]port of their position. Insofar as those cases concern the right of abandonment of a condemnation suit they can have no application here, as the abandonment considered in both cases was attempted after the time allowed therefor by the provisions of section 1255a, supra. It cannot be disputed that plaintiff in the instant case filed notice of abandonment within the time provided by the code. As far as the application of the doctrine of estoppel is concerned, the Times-Mirror and Deacon cases both present a set of facts entirely different from the circumstances of the instant case. In the Times-Mirror ease the property owner had actually changed its position as the result of the condemnation proceedings and in reliance upon the contemner’s taking the property. The doctrine of estoppel does not appear to have been discussed m the Deacon ease. In passing, it should be stated that the court in the Deacon case pointed out the fact that the case of Pool v. Butler, supra, was decided before the enactment of section 1255a. However that may be, the reasoning in the quotation hereinabove given from the Pool case may be applied to the situation in the instant case under the provisions of section 1255a. Moreover, it would appear that the only change wrought in the situation by the enactment of section 1255a was that of limiting the right of abandonment to thirty days after final judgment. (See City of Los Angeles v. Deacon, supra, at page 649.)
From the foregoing it would appear that petitioner, as plaintiff in the condemnation proceeding, was well within its rights in serving and filing notice of abandonment at the time it did, and that in the absence of a positive showing of very unusual circumstances the court would not be justified in denying plaintiff’s motion for judgment of dismissal, assuming that the matter of such dismissal rested in the discretion of the court. In this connection, it is difficult to perceive of a situation existing before the trial of a condemnation action wherein the plaintiff could be estopped from abandoning the proceeding.
The defendants in their plea, raised in opposition to petitioner’s motion for judgment of dismissal in the court below, have stated no grounds for estoppel. The statements there made by defendants and adopted here by respondent merely reveal the possible existence of a cause of action for damages to defendants’ real property as the result of the [399]operations of petitioner. This is a matter entirely independent of the question of the appropriation of the real property to a public use, and one for which the defendants may institute an independent action for damages without prejudice to their rights. (McCandless v. City of Los Angeles, 214 Cal. 67 [4 Pac. (2d) 139].) The contention that petitioner may not abandon condemnation proceedings as against any one parcel of property without abandoning the entire project is without substance. If, after the institution of a condemnation action, a plaintiff should determine that a certain parcel of land is not necessary in the operations contemplated, there is no law to prevent an abandonment of proceedings against the land in question; and the right of a plaintiff to abandon condemnation proceedings is not affected merely by the fact that the property in question may have suffered damage through plaintiff's operations.
Under the circumstances here presented, it appears that there was no good cause shown for the denial of petitioner’s motion for judgment of dismissal under section 1255a of the Code of Civil Procedure. Moreover, the provisions of section 1255a, supra, here in question are similar to those of section 583, wherein it is provided that any action shall be dismissed by the court unless such action is brought to trial within five years after the filing thereof, unless the parties have stipulated in writing to ah extension of time. Section 583, in that respect, has been held mandatory upon the court. (Andersen v. Superior Court, 187 Cal. 95 [200 Pac. 963].) Under the provisions of section 1255a it would also appear that a plaintiff in a condemnation proceeding has an absolute right to abandon the action and obtain a judgment of dismissal, within the time provided, unless, for some conceivable reason, the plaintiff is estopped from so doing. In that connection, the following language in Andersen v. Superior Court, supra, at page 100, is pertinent:
“But, conceding that there may be equitable grounds of estoppel to the enforcement of the dismissal of an action under section 583 of the Code of Civil Procedure . . . the question to be first presented to this court under a mandamus proceeding would be one of law, as to whether the facts pleaded and passed upon by the trial court constituted a sufficient ground for denying the motion to dismiss. It cannot be claimed that it is a matter within the discretion of [400]the trial court to arbitrarily determine what extraneous circumstances will excuse a compliance with the statute.”
The above quotation from the Andersen case applies with equal force to the situation presented upon a motion for dismissal of a condemnation action under the provisions of section 1255a. The provisions of section 1255a regarding the dismissal of such actions are mandatory upon the trial court.
For the foregoing reasons, a peremptory writ of mandate requiring the Superior Court of the County of Los Angeles to enter a judgment dismissing the said condemnation proceeding as to the parcel of land in question is granted.
York, P. J., and White, J., concurred.
A petition for a rehearing was denied November 12, 1941, and respondent’s petition for a hearing by the Supreme Court was denied December 18, 1941. Houser, J., and Carter, J., voted for a hearing.
On January 12, 1942, the following opinion was filed: