Weiler v. Superior Court

SHAW, C. J.

Each cause above entitled is a proceeding by the plaintiffs therein to review and annul an order of the superior court of San Mateo County, on the ground that it is in excess of the jurisdiction of the court.

The two proceedings involve the same order and the same proposition of law. The order affects the respective rights of the parties in the same manner. They will therefore be considered together.

On November 14, 1921, the county of' San Mateo began an action in said court to condemn for a highway a strip of land through and over three separate tracts of land in said county, belonging to different parties. The first tract belonged to William Weiler and Jacob Weiler, the plaintiffs in case S. P. No. 10,182, and the third tract belonged to the plaintiffs in case S. P. No. 10,195. The second tract is owned by Madaline Zanone and six other persons as tenants in common, none of whom is a party to either of these two proceedings.

Thereafter, on February 8, 1922, and prior to the service of any summons on any of the parties to these two proceedings, the affidavit of Joseph J. Phillips was filed in said action, wherein he states that he is acting as agent to secure rights of way for the proposed highway; that he is familiar with the property sought to be acquired in said action, and “is informed as to the value thereof, and as to the extent of the damage that will accrue to the defendants by reason of such condemnation and taking,” and that “in his judgment the total value of all the property sought to be acquired together with all the damage by reason of the severance thereof and all other damage of whatsoever kind and nature, to accrue to all of the defendants herein will not exceed $1720.”

Thereupon, on the same day, and without notice of any kind to any party to said action, or the taking of any evidence other than said affidavit, and in the absence of said parties, the court made the following order:

[731]

“It appearing to the satisfaction of the Court that plaintiff herein, County of San Slatco, a political subdivision of the State of California, has filed an action in eminent domain ;

“It is therefore ordered that the plaintiff take immediate possession and use of the property sought to be condemned, and that the sum of seventeen hundred and twenty dollars be and is hereby fixed as the amount reasonably adequate to secure to the owners of the property sought to be condemned immediate payment of just compensation for such taking and any damage incident thereto, including damages sustained by reason of an adjudication that there is no necessity for taking the property as soon as the same can be ascertained; that such possession be taken upon deposit by said plaintiff with the clerk of this court of said sum.”