Robinson v. Southern California Railway Co.

CHIPMAN, C.

Action to recover damages for taking possession of a strip of land one hundred feet wide and constructing thereon a railroad track. Defendant demurred to the com

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plaint for want of sufficient facts, and also averring that the action is barred by sections 318 and 319, and subdivision

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of section 338, and subdivision 1 of section 339 of the Code of Civil Procedure. The demurrer was sustained, and, plaintiff declining to amend, defendant had judgment, from which plaintiff appeals.

The complaint sets forth that plaintiff is now, and has been for more than thirteen years last past, the owner of the northeast quarter of section 24, township 5 south, range 3 west, San Bernardino meridian; that defendant is a California corporation formed November 7, 1889, by the consolidation of certain three other railroad corporations, naming them, incorporated under the laws of this state, and that the railroads constructed by these three corporations, respectively, have been operated as parts of one system and under the same general management; that in May, 1887, the California Central Railway Company, one of said three companies, “as agent of the state of California, in the exercise of the right of eminent domain, entered upon the above-described lands of plaintiff and seized and took possession of a strip of said land one hundred feet in width, running diagonally across said above-described northeast quarter of section 24”—particularly describing this strip; that defendant as successor of said last-named company, “in the exercise of its right of eminent domain, constructed a steam railroad upon and over said strip of land, and completed the same on or about June, 1888; and that since November 7, 1889, the defendant has operated the said railroad.” It is then alleged that neither of said companies ever acquired title to said strip of land if by purchase or by voluntary grant or donation; that neither said defendant nor said California Central Railway Company ever tendered or paid any compensation for said strip of land so taken and used,” and has commenced no proceedings for condemnation, and has never “paid to plaintiff or her predecessors in interest for the taking of said land or the damage thereto.” The complaint then sets forth the value of the land, to wit, eight thousand dollars; “and that the said land has been injured by the wrongful act of said defendant in taking possession of said strip .... by the operation of a steam railroad thereover,” etc., “to plaintiff’s damage in the sum of five thousand dollars.”