Albion River Railroad v. Hesser

Foote, C. This action was instituted for the purpose of condemning to the public use a right of way for the plaintiff’s railway track over a portion of the defendant’s land.

Judgment of condemnation followed, as prayed for, and the damages were assessed against the plaintiff in the sum of $175, as a just compensation for the property sought to be condemned, and as damages consequent to such condemnation.

The defendant appeals from the judgment, and order denying a new trial. The contention of the appellant is, that the court erred in failing and refusing to make and give judgment in his behalf for eight thousand five hundred dollars more than was awarded him. The ground upon which this claim is advanced is, that the railroad [436]corporation entered upon the land of the appellant before any condemnation proceedings had been commenced, and erected thereon a bridge and railroad track, which had become permanently attached and affixed to the soil, which was of the value of eight thousand five hundred dollars. And such being the fact, the defendant became the owner of these fixtures or permanent improvements upon his land, placed there by plaintiff as trespassers, and, as a consequence, was entitled to have their value allowed to him as a part of his just compensation.

The evidence shows that the corporation, at the time of its entry upon the land and the building of the bridge and track thereon, did not know positively who owned the land, nor did the defendant know that it was his land that was being thus intruded upon until he got the field-notes of it from San Francisco.

While the entry of the plaintiff may have been, technically, a trespass, it was not the act of a mere tort-feasor. It is therefore to be determined whether the bridge and track, placed upon the land, under such circumstances, with the evident intention, in good faith, to put in operation the constitutional right to condemn, for the public use, the right of way over the land, is such an act as operates as a dedication, in law, of the materials or structures of the railroad placed upon the land to the owner of the land, so as to entitle him to include them in the assessment of his damages as a just compensation for the condemnation of the right of way over his land.

In the case of Cal. P. R. R. Co. v. Armstrong, 46 Cal. 85-90, the appellate court said: “ The argument on behalf of defendant on the first point is, that the plaintiffs, in constructing the railroad track, were trespassers, and that the track, being attached to the soil, became a part of the realty, and belonged to the owner of the land. Hence he claims that its value ought to be included in the estimate of damages, in like manner as though the defendant himself had built the road. But this proposi