Spring Valley Water Works v. Drinkhouse

Garoutte, J. After judgment was entered in the trial court, July 27, 1887, in favor of the plaintiff, for the condemnation of 14.45 acres of defendant’s land to public use as part of a reservoir site (compensation and damages to defendant being assessed at $5,103, and $100 costs), and pending defendant’s appeal therefrom, the court below, upon due application therefor by. plaintiff, entered an order October 8, 1887, under section 1254 of the Code of Civil Procedure, authorizing the plaintiff, upon paying into court $5,000 in addition to the amount of the judgment, to take possession of and use the property condemned “ during the pendency of and until the final conclusion of the litigation,” and staying all actions and proceedings against the plaintiff on account of such possession and use.

In pursuance of this order, after paying into court the sums above required, plaintiff took possession of the land in controversy, and has since used the same as part of the lower Crystal Springs reservoir site, the lower part of the land being now covered with water thirty feet in depth, there being held in this reservoir above the lowest level of the land in question 3,682,546,000 gallons of water. The water in this reservoir is used to supply San [222]Francisco and its inhabitants with water, and is necessary to maintain an adequate supply therefor.

Upon defendant’s appeal from the judgment, and from an order refusing a new trial, this court, on December 29, 1891 (92 Cal. 535), entered the following order: “ Judgment and order reversed, with directions to the court below to retry the issues as to the value of the land sought to be taken, and the damage to the remaining portion of the land not taken; and thereupon to enter judgment in accordance with the prayer of the complaint, and in favor of the defendant for such value and 'damages, and costs.”

It has therefore been finally determined in this action that the use to which plaintiff proposes to put the defendant’s land is a use authorized by-law, and that its taking by plaintiff is necessary to such use, and all that remains to be determined upon a new trial is the amount of compensation and damages to be awarded to the defendant.

Appellant now petitions this court for a writ of restitution, under section 957 of the Code of Civil Procedure, which section provides that “ when the judgment or order is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous jugdment or order, so far as such restitution is consistent,” etc. It is insisted that the reversal of the judgment gives appellant the absolute right to a restitution of the premises, but the wording of the statute will bear no such construction. The section is not mandatory upon the court, but the power conferred thereby is to be exercised when the circumstances of the case call for the use of a judicial discretion.