Butte County v. Boydstun
Before: McKee
Synopsis
Eminent Domain—Proceedings by County for Highway.—Provided it shows it has fully complied with the requirements of the statute under which private property may be taken for public uses, a county may institute proceedings to condemn land for purposes of a highway.
Eminent Domain—Elements of Damages—Benefits.—Private property cannot be taken from its owner even for a public use unless he is given just compensation; and this consists of the whole value of the land taken and the damage resulting to the rest of the land, injuriously affected by the taking, less the amount of benefits accruing to the owner by reason of the improvement.
Eminent Domain—Damages—Cost of Fencing.—In assessing damage to land, not taken but off which land is taken, in condemnation proceedings for a highway, one of the matters to be considered is increased necessary outlay for building fences; and it is error to exclude evidence bearing upon that consideration.
McKEE, J. This was a proceeding to condemn a strip of land belonging to the appellant for a road in the county of Butte.
Mainly, two questions have been argued and submitted for consideration, namely: 1. Whether the proceeding has been properly brought in the name of the county; 2. Whether the appellant’s land has been appropriated by a proper judgment of condemnation.
A county is a public corporation, endowed with capacity to acquire real property within its limits for roads and highways, etc.: See. 360, Civ. Code. It is also an integral part of the state, and entitled, as an agent of the state, to the control and management of the roads and highways within its jurisdiction. It is, therefore, a person in charge of a public use, and may exercise the right of eminent domain in behalf of the use: Civ. Code, sec. 1001. But it cannot exercise the right except in the manner provided by title 7, Code of Civil Procedure. Like any other condemning party, it is bound to show that the requirements of the statute which permits it to take private property for public use have been fully complied with. Hence it must, in any proceeding initiated by it for the purpose, show affirmatively that the property which it proposes to take is to be applied to a public use; that it is necessary to take it for that purpose, and that the compensation to which the owner of the property is entitled has been ascertained and assessed according to law. And each of these things must affirmatively appear in the record of the proceedings to have been found as facts by the verdict of a jury or the finding of the court, and to have been confirmed by the judgment of the [153]court: Secs. 1241, 1251, 1252, supra. If not so found and adjudged, the proceeding will he void. For private property cannot be taken from an owner against his consent, except for a public use, after just compensation for it has been ascertained, assessed and adjudged, and is ready to be paid: Sec. 1253, supra.
Such compensation consists of the whole value of the property to be taken and the damages which may result to the remainder of the land injuriously affected by reason of the taking, less the amount of any benefit which the proposed improvement may be to the owner. What such damages may be, will, of course, depend upon the circumstances of each' case. But, under all circumstances, the owner is entitled to the fair market value of the land proposed to be taken, to be estimated at the commencement of the proceeding to condemn (sec. 1249, supra), and, in addition, to the remainder of any damages for the consequential injury to the remaining portion of his land after deducting benefits.
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