Marblehead Land Co. v. Superior Court

WORKS, J.

The present constitution of California has always contained a provision to the effect that “Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court, for the owner, and no right of way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be. ascertained by a jury, unless a jury be waived, as in other civil cases in a court of record, as shall be prescribed by law” (Const., art. I, sec. 14). In fact, this language was the entire text of the section as originally adopted. In 1911 the section was amended in a respect which is not of moment in the present litigation. In 1918 a second amendment was adopted. This amendment opens with the original text as above set forth, the time-honored language being followed immediately 'by these provisions: “provided, that in an action in eminent domain brought by the state,, or a county, or a municipal corporation, or a drainage, irrigation, levee, or reclamation district, the aforesaid state or political subdivision thereof or district may take immediate possession and use of any right of way required for a public use whether the fee thereof or an easement therefor be sought upon first commencing eminent domain proceedings accord

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ing to the law in a court of competent jurisdiction and thereupon giving such security in the way of money deposits as the court in which such proceedings are pending may direct, and in such amounts as the court may determine to be reasonably adequate to secure to the owner of the property sought to be taken immediate payment of just compensation for such taking and any damage incident thereto, including damages sustained by reason of an adjudication that there is no necessity for taking the property, as soon as the same can be ascertained according to law. The court may, upon motion of any party to said eminent domain proceedings, after such notice to the other parties as the court may prescribe, alter the amount of such security so required in such proceedings.” The section now stands as it was amended in 1918.

On December 13, 1922, the people of the state of California, by the department of public works of the state of California, as plaintiff, filed complaint in eminent domain with respondent superior court. All the petitioners before us for the writ of review were defendants in that action, as were also county of Los Angeles, Reider-Haag Company, a corporation, and eight fictitiously named persons. By the complaint the plaintiff in the action sought to condemn a right of way nineteen miles in length for a state highway across the extensive tract of land familiarly known as the Rancho Malibu. After the filing of the complaint, and upon motion to that end, respondent superior court made its two certain orders in the action, each dated December 13, 1922. The first of these, after reciting the fact that the complaint had been filed, and various other matters, including a description of the right of way sought to be condemned, ordered “that the plaintiff . . . deposit in” a certain named bank “the sum of Thirty-Two Thousand One Hundred Eighty Dollars, in a savings account on interest, which sum is to be placed in a special deposit to be paid out only upon the order of the Court herein, and to be held as security for payment to the owner or owners of the property sought to be taken as just compensation for the taking of the parcel of land, and any damage incident thereto, including damages sustained by reason of any adjudication that there is no necessity for taking the property as soon as the same can be ascertained according to law,” and also “that upon