San Diego Land & Town Co. v. Neale

Hayne, C. — The general features of this case are shown in No. 12743, w’hich has just been decided. (Ante, p. 63.) It appears that the plaintiff’s dam, which was begun before the commencement of the proceedings in eminent domain, was completed while the same were pending, and that the flow of the water of the river was so great as to flood the part of the defendants’ land which was sought to be condemned. The plaintiff did not pay or deposit in court the amount awarded to the defendants, but proceeded with its motion for new trial. The defendants then moved for an order requiring the plaintiff to restore the possession to them, or in other words, to draw off the water from their land. The court below granted this motion, and the plaintiff appeals.

There can be no doubt that the plaintiff had no right to flood the defendants’ land before payment or deposit •of the compensation. The question is as to what is the proper remedy. The provisions which bear upon this subject are sections 1254 and 1252 of the Code of Civil Procedure. Section 1254 contains a provision by which, after a proper deposit, the court “ may, upon notice of not less than ten days, authorize the plaintiff, if already in possession, to continue therein, and if not, then to. take possession of and use the property during the pendency of and until the final conclusion of the litigation, and may, if necessary, stay all actions and proceedings against the plaintiff on account thereof.” This provision, it seems to us, is merely that, upon certain conditions, the court may anticipate its final action so far as to authorize or legalize a possession pending the litigation. It certainly does not expressly provide that the plaintiff may be ejected from a possession taken inde[82]pendently of the eminent-domain proceedings, or required to tear down valuable improvements which may have been made previously thereto, and we think it contains no such implication. And the learned counsel for the defendants expressly say that “the order is not based on section 1254.” ^

The only other provision is as follows: —

“ Sec. 1252. Payment may be made to the defendants entitled thereto, or the money may be deposited in court for the defendants, and be distributed to those entitled thereto. If the money he not so paid or deposited, the defendants may have execution as in civil cases, and if the money cannot be made on execution, the court, upon a showing to that effect, must set aside and annul the entire proceedings, and restore possession of the property to the defendant, if possession has been taken by the plaintiff.”