Colusa & Hamilton Railroad v. Glenn

THE COURT.

This action is in eminent domain, and was initiated by the plaintiff for the purpose of condemning and thereby acquiring for its purposes a strip of land belonging to the defendant and comprising, as the jury found, 12.18 acres.

The jury assessed the damages for the land thus to be taken at the sum of $2,801.40 and for the land not taken, because of the depreciation in the value thereof by reason of

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its severance from the land proposed to be taken and the resulting damage, at the sum of $14,130. Upon the verdict so returned the court made and caused to be entered judgment, from which and from the order denying the plaintiff a new trial the latter appeals.

The tract of land from which the strip is sought to be taken in the present case adjoins the tract of land of which a portion, involving approximately the area sought to be taken in this ease, was condemned in the case of the

Colusa & Hamilton R. R. Co.

v.

Leonard,

176 Cal. 109, [167 Pac. 878]. Upon an examination of the records of the present and the said Leonard case, we have found that the physical conditions surrounding the two tracts of land are substantially if not precisely the same; that is to say, that the two tracts are similarly situated with respect to the conditions that the evidence showed would exist as the result of the building and the running of the railroad tracks of the plaintiff, according to the plan as shown, through and over the strips to be taken, and that each tract would be equally subject to the increased danger, which it was shown would result to the untaken lands, from the flood waters of the Sacramento Biver, in case the levees protecting the lands against said stream were to give way from any of the causes suggested; that, therefore, the elements contributing to and forming the bases determinative of the depreciation of the value of the lands not taken by reason of the severance therefrom of the strips taken and of the use to which the latter were to be put in conformity with the design disclosed by the evidence were practically and substantially the same in both cases.