San Francisco & San Jose Railroad v. Mahoney

By the Court, Shafter, J. The objection made by the respondent that no appeal lies from the judgment in a proceeding to condemn lands to the use of a corporation, or from an order granting or refusing a new trial, is not well taken. The point was passed upon directly in Sacramento, Placer and Nevada Railroad Company v. Harlan, 24 Cal. 334.

It is suggested, rather than urged, that the doctrine of that case is irreconcilable with Dorsey v. Barry, 24 Cal. 449; but the distinction between the two cases is apparent. The Act regulating the trial of contested elections not only provides a special mode or method of trial, but one which we considered as “ complete in itself, leaving little, if anything, dependent upon implication or the common law powers of the Court.” There is no break in the special procedure applicable to that class of cases which the general Practice Act can be drawn upon to fill. It will be observed that the reasoning in Dorsey v. Barry does not go so much upon the quality of the proceedings, as being special or contrary to the course of the common law, as it does upon the ground of the perfectness of the.procedure in the given instance—subjecting the question of construction, with which the Court was dealing, to the maxim of expressum facit cessare taciturn, in its broadest or most exhaustive application.

It is insisted on the part of the appellant that the “ Commissioners erred in allowing the sum of four hundred dollars per acre for the land appropriated, as the evidence shows that [116]at the time of the appropriation the same was not worth more than one hundred dollars per acre.”

Time when the value of land taken for railroad purposes is to he appraised.

One of the points raised in argument under this specification, relates to the time with reference to which the value of land taken for public use is to be assessed.

There can be no doubt that the land owner is entitled to receive a sum equal to the value of his land at the time when, in the language of the Constitution, the land is “taken” (Pierce on Am. Railways, 203)—subject to the allowance provided for by section thirty of the Act of 1861. It is claimed by the appellant that the taking of the land was accomplished in this case when the plat of the location of the road was filed with the Secretary of State and in the office of the Clerk of the County, under the forty-third section of the Act referred to; or at least, that the taking was in point of time, identical with the actual entry upon the land for the purposes of construction ; while it is claimed, on the part of the respondent, that land cannot be said to have been appropriated or taken for public use until the compensation assessed by the Commissioners shall have been paid or tendered.