City of Santa Ana v. Brunner

CHIPMAN,C.

—Action to condemn a strip of land as and for an alley. Certain issues were tried by a jury, and plaintiff had the verdict, and judgment was rendered accordingly. The appeal is from the judgment, from an order striking out certain portions of defendant’s answer, and from the final order of condemnation, and from the order denying defendant’s motion for a new trial.

A general demurrer to the complaint was filed, and also a demurrer on the ground of ambiguity and uncertainty, and appellant now urges that the demurrer should have been sustained.

1. The complaint is laid under the provisions of section 18 of the act of March 6; 1889 (Stats. 1889, p. 70), and agreeably to the requirements of the Code of Civil Procedure relating to eminent domain, and prescribing in section 1244 thereof what the complaint must contain. The objection urged in .support of the general demurrer is, that “the plaintiff only asks for an easement or right of way”; that no.express grant or implied reservation is set out,' or user for any length of time, and no servitude is shown; citing Civ. Code, sec. 801;

Carey

v.

Rae,

58 Cal. 162. Appellant misconceives the source of plaintiff’s right; it does not spring from an express grant, nor from an implied reservation, nor from user for a time sufficient to create a prescriptive right, as was the case in

Carey

v.

Rae, supra,

which was a controversy between contiguous owners of land. That case has no application. The right here is derived from the statute, and is given in the interest of the general public. So far as we can see, the complaint states a cause of action; and, except as to the objections above noted, appellant makes no point on this ground of demurrer.

2. The other grounds of demurrer are equally untenable. It plainly appears from the complaint that the purpose of the action is to condemn a strip of land, definitely described, for a definite purpose, to wit: “To acquire an easement or right of way over and along the land hereinafter described ■ for a public use, to wit: The opening and extension of an alley through,” etc., “ as and for an alley, and that all the said land

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