County of Riverside v. Alberhill Coal & Clay Co.

JAMES, J.

The defendant Los Angeles Pressed Brick Company, a corporation, appeals from the judgment and from an order denying its motion for a new trial. The action was brought on behalf of the county of Riverside to enforce condemnation of a strip of land for public road purposes. Acting under the authority of the provisions of article VI, chapter 2, of the Political Code, as those provisions are embodied in section 2681 et seq., the board of supervisors of plaintiff county made an order directing the district attorney to prosecute this action. All of the steps taken, from the filing of a petition by freeholders, including hearing on report of viewers, and the fixing of damages by the board of supervisors, were sufficiently alleged. The answer of appellant made no issue as to any of those allegations. The principal matters urged in defense by its answer refer to the alleged inadequate amount of damages. The defendant did, however, assert that there existed no public necessity for the road; that the same was in truth and in fact for the convenience of a certain clay manufacturing company. The trial court found that all of the allegations of the complaint were true. It is the contention of appellant that it should have appeared by the allegations of the complaint that the board of supervisors had in a formal way by resolution declared the existence of the public necessity for the laying out of the road and the taking of appellant’s property. This contention is based upon the condition of the law as found in section 1241 of the Code of Civil Procedure, where it is declared that before property may be taken by condemnation it must appear that the taking is necessary to the use claimed, and that provision further declares as follows: “Provided, when the legislative body of a county, city and county, or an incorporated city or town, shall, by resolution or ordinance, adopted by vote of two-thirds of all its members, have found and determined that the public interest and necessity require the acquisition, construction or completion, by such county, city and county, or incorporated city or town, of any proposed public utility, or any public improvement, and that the property described in such resolution or ordinance is

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necessary therefor, such resolution or ordinance shall be conclusive evidence; (a) of the public necessity of such proposed public utility or public improvement; (b) that such property is necessary therefor, and (c) that such proposed public utility or public improvement is planned or located in the manner which will be most compatible with the greatest public good, and the least private injury.” . The provisions to which reference has just been made were incorporated in the section mentioned by amendment enacted by the legislature in 1913. It is admitted by appellant that prior to the adoption of this amendment, under proceedings like those had for the opening of the road here involved, it was unnecessary to have proof made as to the existence of the necessity which justified the public in taking private lands. It was so held in