Davis v. San Lorenzo Railroad

By the Court, Crockett, J: The principal question in this appeal is; whether section 34 of the Railroad Act of April 27 th, 1863, (Statutes 1861, p. 607; 1863, p. 610) is in violation of that clause in the constitution which provides that private property shall not be taken for public use without just compensation. The same question was before this Court in the case of Fox v. Western Pacific Railroad Company, 31 Cal. 538, and the decision was that the provision in question was not unconstitional. We are now asked to review that decision, and have less hesitation in doing so, inasmuch as the section under consideration has been materially modified by section 1254 of the Code of Civil Procedure, and we do not see how titles acquired under the Act of 1861 can now be disturbed, if the ruling in that case shall be somewhat modified.

[520]Section thirty-four provides that at any stage of the proceedings for condemning lands for railroad uses, the Court or Judge may enter an order authorizing the railroad company, if already in possession of the land sought to be condemned, to continue in the use and occupation; “and if not in possession to take possession of, and use such premises during the pendency, and until the final conclusion of such proceedings, and may stay all actions and proceedings against such company on account thereof; provided, such company shall pay a sufficient sum into Court, or give security, to be approved by such Court or Judge, to pay the compensation in that behalf when ascertained.” The “compensation” here referred to is that which shall be awarded in that proceeding to the owner, if the land shall be finally taken for public use. The Act is capable of no other interpretation. If the proceeding shall ultimately fail, and the land, for any cause, shall not be taken for public use, no provision whatever is made in the statute for securing to the owner compensation for the use of the land and for waste committed upon it whilst the corporation was in the possession. This omission has been supplied by section 1,254 of the Code of Civil Procedure. But under the Act of 1861, as amended in 1863, the corporation, on giving the bond required by section 34, might enter upon the land, demolish the buildings if there were any, destroy the timber, dig up orchards and vineyards, make excavations and embankments, and in fact might render the land wholly valueless for any other than railroad uses. After this devastation was accomplished, and the owner was despoiled of his estate under the authority of law, the proceeding for condemnation might utterly fail of its purpose, and the land would not finally be taken for public use, nor subjected to the servitude. In that event, the Court having jurisdiction of the proceeding could award no compensation to the owner; and the bond given by the corporation could afford him no redress, inasmuch as the damages he had suffered would not come within its conditions. We should then have a case in which the law had authorized a private corporation to enter upon the lands of another, demolish his