Butte County v. Boydston

McKee, J. The case in hand arises out of a proceeding under title 7, part 3, of the Code of Civil Procedure, to condemn part of a tract of lam] belonging to the defendant for a private way. Assuming that the appropriation of private property for such a purpose is a taking for public use, for which the power of eminent domain may be exercised (Sherman v. Buieh, 32 Cal. 255), and that the county in which such a road is to be opened represents the use, yet the power must be exercised in the manner provided by the Code of Civil Procedure, under which the proceeding has been commenced. By section 1248 of that Code it is provided that the court in Avhich the proceeding has been brought must hear, with or without a jury, such legal testimony as may be offered by any of the parties to the proceeding; and upon such testimony ascertain and assess, (1) the value of the land sought to be condemned, and of any improvements upon it at the date of the issuance of the summons in the proceeding; (2) the damages which may accrue to the remaining land by reason of its severance from the part sought to be condemned, and the opening of the road in the manner proposed by the plaintiff; and (3) the benefit, if any, which the opening of the road may be to those portions of the defendant’s land which may be severed from the part to be appropriated. These constitute the elements of the compensation to which an owner of land is entitled, where, his land, or any part of it, is proposed to be taken and appropriated for a public use. And when these things shall have been judicially ascertained and assessed, if the .benefit shall be less than the damage, the former must be deducted from the latter, and the [112]remainder shall be the damages assessed. On the other hand, if the benefit shall exceed or be equal to the damage, the owner shall be entitled only to the value of the land to be taken. But the value of the land, the damage, if any, and the benefit, if any, must be separately assessed, in order that the compensation may be adjudged and paid. Until such an assessment, adjudication, and payment, or tender of compensation, the owner cannot be deprived of his land, and any judgment of condemnation rendered against him would be illegal and void. (§§ 1251, 1252, 1253, Code Civ. Proc.)

In the proceeding under review the law was not complied with. There is not in the record of the case any assessment of damage, nor any finding that no damage was sustained. There is a finding of facts which, it is ^admitted, “sustains all the material allegations of the complaint,” but the complaint itself contains no allegations of value, damage, or benefit. Upon this finding the court held, as a conclusion of law, that that portion of defendant’s land sought to be condemned was necessary for the road, and that it should be condemned upon payment to the defendant of one hundred and fifty dollars, each party paying his own costs. It is stipulated that this sum of one hundred and fifty dollars was found as damages; but whether the sum was for the value of the land to be appropriated to the road, or for damage for any injury to the remaining land, or for the excess of damage over benefit, nowhere appears in the findings or by an assessment. The defendant was entitled to have his compensation ascertained and assessed according to law; and for that purpose the mode designated by the law must be pursued. Without an assessment, as far as practicable, for each source of damage separately, and without payment or tender of the compensation assessed, no judgment of condemnation could be legally entered. (§ 1248, sub. 5, and § 1253, supra.) The judgment is therefore erroneous and must be reversed. But a question arises out of the record, which will again come up at another trial, and we are asked to pass upon it.