Wilmington Canal & Reservoir Co. v. Dominguez

By the Court: By the second subdivision of section 1241 of the Code of Civil Procedure, it is provided in effect that before private property can be taken for a public use it must appear " that the taking is necessary for such use.”

That question was submitted to a jury, who found that at the time of the commencement of this action it was not necessary to take the land sought to be> taken by the plaintiff for the purposes stated in the complaint. The court disregarded the verdict, and found as a fact that it was necessary to take part of the land.

Section 1256 of the Code of Civil Procedure is as follows: “Except as otherwise provided in this title, the provisions of Part II of this Code are applicable to, and constitute the rules of practice in the proceedings mentioned in this title.” Section 592 of Part II provides that “an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference ordered, as provided in this Code,”

There is no provision in the sections which relate to eminent domain inconsistent with the two sections just cited. Therefore, the judgment and order are reversed and the cause remanded.