City of San Jose v. Reed

Myrick, J. This is an action to condemn a parcel of land to the use of plaintiff as a public street. The complaint contains an averment “that said defendants are the only owners or claimants of the premises hereinafter described and sought to be condemned.” On the trial the court permitted the plaintiff to give evidence tending to show that the defendant E. P. Reed had dedicated the land to the public as a street, as affecting the question of damages or compensation. This was error. Ho question of dedication was involved in the pleadings for any purpose. If there had been a dedication, and defendants had unlawfully obstructed the street, an action of another character could have been maintained. Either the land had been dedicated and was a public street, or the defendants were the owners. The plaintiff alleged the latter to be the fact. For the purposes of this action, then, it must stand on the allegation, and we must regard them as such. The jury gave the defendants a verdict of one dollar for the lands taken. By the testimony the lowest estimate of value was two thousand seven hundred dollars; the highest, five thousand four hundred dollars. The verdict was not sustained by the evidence; it was evidently based on the idea of a former dedication.

Judgment and order reversed and cause remanded for a new trial.

Thornton, J., and Sharpstein, J., concurred.