Eel River & Eureka Railroad v. Field

Ross, J. The plaintiff, a corporation organized under the laws of this State for the purpose of building and operating a railroad from a point on the Van Duzen River to the city of Eureka in Humboldt County, seeks by this proceeding to condemn a right of way for its road over the land of defendant. The answer of - defendant put in issue the alleged necessity for taking the land in question, and upon this issue the court below found in favor of defendant, and accordingly gave judgment against the plaintiff. It is contended here that the evidence is insufficient to sustain the finding.

It appears that one R. F. Herrick, at the instance of the plaintiff, made a preliminary survey for the line of its road through that portion of the land of the defendant described as “ west of the dyke,” and defendant sold to the plaintiff a right of way four rods in width for its road over that part of his land “granting to said company the right to pass and re-pass with its rolling stock, freight, and passenger cars, to construct and maintain side tracks, switches, turn-tables, and warehouses; the said grant of right of way to continue and be in force so long as the said company shall continue to maintain and operate its road and no longer.” But the line of the road as finally located ran through another portion of defendant’s land, and it is over that portion of the land embraced in the line as finally located that the plaintiff seeks to acquire the right of way by means of these condemnation proceedings. The plaintiff’s engineer testified at the trial that “it was necessary to locate the line as described in the complaint herein across the defendant’s land because it is the best line, the most economical to construct, and the most practicable route for running a line through that land. It is the shortest line; it has less curvature than any other line, and the road being a very important one (may be a through line) it is necessary to consider very carefully the best line to be run through defendant’s land.”

The engineer who ran the preliminary line testified: “ The difference between the line described in the complaint and the [431]one I surveyed consisted in this: The one I surveyed west of the dyke was of greater length, had a very short curve; there may be considerable difference in cost of two routes, as the line in the complaint described is high enough to avoid the necessity of throwing up an embankment. I could not say what the difference in cost would be. The route they have located is the shortest, still the other route would accommodate their business, and it looks to me better than the one they seek now. It is nearer their landing.”