Eureka & Trinidad Railroad v. McGrath

McFarland, J. The plaintiff, a railroad corporation, on the seventeenth day of February, 1885, filed its complaint in the court below, asking a judgment condemning a right of way for its road through and over a lot of land belonging to defendants in the city of Eureka. [50]Defendants answered, denying all the averments of the complaint (except ownership of the lot), and claiming one thousand six hundred dollars damages in case of condemnation. The case was tried with a jury, and all the facts necessary to support a judgment for plaintiff were found in its favor, and defendants’ damages were duly assessed at six hundred dollars. Judgment upon the verdict was duly entered on August 29, 1885.

The judgment, after reciting the proceedings in the case, decrees that plaintiff is entitled to use and enjoy the strip of land described, in the complaint, as the right of way for the construction of its railroad, upon paying to defendants, or depositing in court for them, the full amount of compensation or damages assessed by the jury. Plaintiff then duly moved for a new trial, which was denied, and thereafter, on October 1, 1885, it appealed to this court “from so much of the judgment as •directed the payment to defendants of the damages assessed by the jury.” It gave a bond to stay execution during the pending of the appeal, in form as provided in •section 942 of the Code of Civil Procedure. On the 11th -of January, 1886, the appeal was dismissed by this court, "because the transcript was not filed in time.

After the appeal had been dismissed, viz., on January •30, 1886, plaintiff filed a petition in the court below, in which it was stated that “ since the trial of said action, plaintiff has determined to change its line where it passes through defendants’ land, as described in the complaint herein, and substitute a line farther north, which will not require of defendants’ land more than a narrow strip from the northeast corner of said lot, not exceeding ten feet in width, if any.” It also served defendants with notice that upon said petition, and upon other matters and proceedings, it would, on the fourth day of February, 1886, move the court “that the judgment entered in said action on the twenty-ninth day of August, 1885, be set aside and annulled.”

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