McDougald v. Southern Pacific R.R. Co.

SHAW, J.

The defendant appealed from the judgment within sixty days after it was rendered and presents the evidence by a bill of exceptions.

The plaintiff is the owner of a block of land 303 feet square, situated just outside of the city of Stockton arid bordering upon Mormon Channel. In April, 1903, the defendant constructed its railway and a drawbridge across Mormon Channel, and ever since that time it has operated and maintained the same. The embankment and approach to the bridge occupies a space about fourteen feet wide and twenty-two feet long of the plaintiff’s land. Defendant took possession of the land and made said improvements without the plaintiff’s permission, against her will, and without compensating her therefor.

As a basis for damages plaintiff alleges that prior to the defendant’s entry said block of land was worth ten thousand dollars; that by reason of the railway and drawbridge thereon the value of the land has depreciated to the amount of nine thousand dollars, for which she asked judgment.

The trial took place on November 30, 1909, more than six years after the construction of the railway and drawbridge complained of. The court found that at the time of the trial the plaintiff’s land would have been worth three thousand dollars but for the said railway and drawbridge, and that by reason thereof the value at that time was only eighteen hundred dollars. Upon this basis judgment was given for plaintiff for twelve hundred dollars as damages. There is no finding as to the value of the land at any other period than the time of the trial, and no evidence was introduced relating to any other period. The evidence all referred to the values at the time of the trial, and it was all introduced over the objection

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of defendant that the value at that time was irrelevant and immaterial.

These findings are insufficient to support the judgment. The land was taken by the defendant for the public use of operating thereon a public railway. It was permanently appropriated to that use. The injury to the plaintiff is of a permanent character. This suit for compensation ratifies the taking for that use. (See

Jeffersonville etc. R. Co.