California Southern Railroad v. Colton Land & Water Co.

McKEE, J. It is contended that the court below erred (1) in overruling the demurrer to the complaint in the proceeding; and (2) in excluding evidence, offered by the defendant, to [245]prove the value of the land in controversy at the time of the trial. The object of the proceeding was condemnation of a strip of land for the right of way for a railroad. By a general demurrer the defendant objected that the complaint did not contain facts sufficient to entitle the plaintiff to exercise the right of eminent domain, because, as was urged on the argument, it did not contain “the names of all owners and claimants of the property, if known, or a statement that they were unknown,” as required by subdivision 2, section 1244, Code of Civil Procedure. But the complaint contains the name of the defendant as a corporation duly organized and acting under the laws of the state of California, and the following allegations: “That plaintiff is constructing a railroad from the said National City northward to a connection with the railroad of the Atlantic and Pacific Railroad Company at or near the thirty-fifth parallel of north latitude, in the state of California; that in the construction, maintenance and operation of its railroad the plaintiff needs, and by this action seeks to acquire, a right of way one hundred feet in width, through the lands of the defendant; said right of way being more particularly described as follows: Being a strip of land one hundred feet in width, located and included between lines on each side of, parallel to, and fifty feet distant from the center line of location of plaintiff’s railroad, as the same is located through the lands of the defendant; said center line being located as follows,” etc. These averments sufficiently show that the defendant was properly named, and that it was the known owner and claimant of the land which plaintiff sought to condemn for the right of way in the construction of its road. There was, therefore, no error in overruling the demurrer.

Under section 1248, Code of Civil Procedure, testimony was taken in the proceeding on June 23, 1883, more than five months after the date of the summons issued in the proceeding. At the taking of testimony the defendant offered to prove, by witnesses then present, the value of the land proposed to be condemned at that time. To this offer plaintiff’s counsel objected, on the ground that the date of the summons was the date at which the value must be estimated. The court sustained the objection, and, on submitting the case to the jury, at plaintiff’s request instructed the jury as follows: