Fletcher v. District Court of Appeal

WILBUR, C. J.

This is a petition for writ of

certiorari

to annul an order of the respondents adjudging the petitioners guilty of contempt in violating the provisions of a writ of

certiorari

issued by that court.

The people of the state of California initiated condemnation proceedings to open a highway to the Malibu ranch. The trial court fixed security in the way of money deposits and the deposits were made in accordance with the order fixing the amount thereof. Thereupon the petitioners took possession of the proposed highway and proceeded to construct the highway. The constitution of California, as amended in 1918, article I, section 14, provides that where a condemnation proceeding is brought by the state, the state “may take immediate possession and use of any right of way required for a public use whether the fee thereof oían easement therefor be sought upon first commencing eminent domain proceedings according to law in a court of competent jurisdiction and thereupon giving such security in the way of money deposits as the court in which such proceedings are pending may direct, and in such amounts as the court may determine to be reasonably adequate to secure

[713]

to the owner of the property sought to be taken immediate payment of just compensation for such taking and any damage incident thereto,” etc.

The writ of review issued by the respondents was directed to the judge of the superior court before whom the proceedings were pending and to that court, and after requiring the certification of the record by the superior court, contained the following provision: “and in the meantime, we command and require the said respondents, iand all persons acting under said orders, to desist from further proceedings in the matter so to be reviewed.”

Among the proceedings thus sought to be reviewed was an order of the trial court made after the deposits of $32,-180 with the Citizens Trust and Savings Bank in accordance with the previous order of the court to the following effect: “It is hereby ordered that the plaintiff, the State of California, may take immediate possession and use of the right of way described in the complaint and in said order, ...” In this connection it should be noted that the respondents do not claim that the effect of the writ of review was to require the petitioners to surrender the possession that they had obtained before the issuance of the writ. In that regard the respondents state: “It may be noted in passing that the owners are not claiming, and have not contended at any time, that the stay of proceedings in the writ here will divest the Highway Commission of the possession they took under the order of possession; they only claim that the writ operated to stay work on the road and maintain the status of the parties until the validity of the order shall have been determined.”