S. H. Chase Lumber Co. v. Railroad Commission

RICHARDS, J.

This proceeding in the nature of an application for a writ of prohibition, was instituted in this court by the petitioners, who allege themselves to be the owners of certain real property, respectively, in the city of San Jose, at the intersection of Julian and Center Streets in said city, their respective properties extending for a considerable distance along and upon the south line of Julian Street eastward and westward of said intersection with Center Street, and also- extending for a considerable distance south of said intersection along and abutting Center Street, together with the ownership of the fee in Center Street, respectively, to the center of said street. Petitioners seek the issuance of a writ of prohibition by this court preventing the respondent Railroad Commission from further proceeding with the enforcement and execution of a certain special order to be hereinafter more specifically referred to, providing for the construction and use by the Southern Pacific Company of an elevated grade crossing at the intersection of said streets, and also providing for the fixation by the Commission of the damages to be awarded by it

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to the respective properties of these petitioners resulting from the making and enforcement of said order, which the petitioners assert to be in violation of the provisions of section 14 of article I of the state Constitution, which forbids the taking and damage of private property for a public use without just compensation having been first ascertained by the verdict of a jury in proceedings in eminent domain before a court of competent jurisdiction. The respondent appeared by both demurrer and answer to said petition and by its latter pleading undertook to justify the making and enforcement of its said order under the provisions of sections 22 and 23 of article XII of the Constitution, and under the enactment by the state legislature of the Public Utilities Act (Stats. 1915, p. 115, as amended in 1917; Stats. 1917, p. 320), and in 1927 (Stats. 1927, p. 1267), adopted in pursuance of the foregoing constitutional provision, and particularly of sections 43(a) and 43(b) of said act.

The proceeding out of which this controversy arises had its immediate inception in a certain application presented on or about January 16, 1930, by the city of San Jose, a municipal corporation, which after setting forth certain facts, to be hereafter referred to as the basis thereof, prayed said Commission to make and enter an order fixing the just compensation to be paid for the damage to each piece or parcel of property specified in said petition, among which were the respective properties of the petitioners herein, and that the commissioners make such final order of condemnation as may be proper in the premises. The foregoing petition of said city was but one of a series of proceedings theretofore had and taken and whereby and whereunder the Railroad Commission had assumed jurisdiction over the general subject of the transposition of the route and tracks of the Southern Pacific Company from their former position along and upon Fourth Street in said city from a point at or .near Washington Street therein to the southern city limits thereof, and the relocation of such railroad route and tracks along and across the entire length of said city north and south and upon or near the westerly boundaries thereof.