San Francisco & San Joaquin Valley Railway v. Gould

HAYNES, C. This action is prosecuted hy said railway company to condemn a right of way for its railroad over the lands owned hy defendant. The defendant demurred to the complaint specially that the description of the land sought to he condemned is uncertain, and generally that a cause of action is not stated. These grounds of demurrer are based substantially upon the same alleged defect, and are aimed at paragraph 3 of the complaint, which reads as follows:

“That the following is a description of the land so as aforesaid required for the right of way of said railroad of plaintiff, viz: A strip of land one hundred feet wide lying equally on each side of the center line of plaintiff’s railroad, where same is located through the east one-half (E 1-2) of section 9, township 24 south, [602]range 24 east, M. D. B. & M., said center line being more particularly described as follows: Beginning for same at a point where said center line intersects the northwest boundary of lot one of said section 9, at or near engineer’s station 2218-J-66, running thence in a general southeasterly direction a distance of five thousand and ninety feet, more or less, to where said center line intersects the east boundary of the east one-half of said section 9, at or near engineer’s station 2269-)-56, said tract of land containing an area of eleven and seven-tenths (11 7-10) acres, more or less.”

It is also alleged that a map of the road, so far as it is involved in this proceeding, is annexed to the complaint as an exhibit and made part thereof.

Appellant contends that the description and map of the land sought to be condemned are each and both insufficient.

Section 1244 of the Code of Civil Procedure, subdivision 4, provides: “If a right of way be sought the complaint must show the location, general route, and termini, and must be accompanied by a map thereof, so far as the same is involved in the action or proceeding; 5. A description of each piece of land sought to be taken, and whether the same includes the whole or only a part of an entire parcel or tract.”

In California Cent. Ry. Co. v. Hooper, 76 Cal. 404, 413, it was said: “The judgment must be so far certain as that the parties, and any ministerial officer who may be called on to enforce the judgment, may know what land is to be taken and paidjor.”

The “description” of each piece of land sought to be taken obviously means such description as will readily and conveniently identify the land before the road is constructed, and upon which alone its construction is to be authorized by the judgment. The beginning point is alleged to be “where said center line intersects the northwest boundary of lot one of said section 9, at or near engineer’s station 2218-f 66.” The complaint does not inform us how it happens1 that there is a “northwest” boundary of lot 1, though the map referred to as exhibit A purports to be a map of “All of section 9 east of swamp land line,” and there is laid down a line running in a southwesterly direction, if we assume that the top of the map is north—for there is no indication of the points of the compass, nor is it marked on the map