Cal. Southern R. R. v. Kimball

The Court: Conceding that none of the public streets of San Diego can be used by a railroad company, unless the right to use the same is granted by the city, in the manner prescribed by law, it does not seem to us to follow, that an action to condemn whatever right the owners of lands lying adjacent to said streets may have therein can not be maintained until after said city has granted a right of way over said streets.

If, as the appellants contend, the streets can not be used by the plaintiff until after it has acquired the right to use them from the city, as well as from the owners of adjacent lands, we are unable to see why the grant from the city should be first obtained. The lands of appellants cannot be taken until paid for, and then for no other purpose than that designated in the complaint. If a grant by the city authority is essential to the right to use the streets for railroad purposes, it can make no difference to the appellants whether such grant is or is not obtained by the plaintiff.

We do not think that Section 1249, C. C. P., which provides that for the purpose of assessing compensation and damages in cases like this the right thereto shall be deemed to have accrued at the date of the summons, is inconsistent, with Section 14 of Article i. of the present Constitution of this State. The value of the property at some period antedating the judgment could alone be awarded to the owner, because the award [92]must be made by the judgment. The future value of the property would be too uncertain to base an award of compensation upon. And the Constitution simply means that the compensation awarded in the manner prescribed by law shall be paid to the owner before his property shall be taken for public use.

We are satisfied that the findings and judgment are in accordance with the requirements of the Code.

Judgment affirmed.