City of Los Angeles v. Harper

HOUSER, J. From the record herein it appears that up to a certain time the Union Pacific Railroad Company had been operating its freight-ears over a spur track which it had constructed in an alley that was fifteen feet wide, and that because of the narrowness of such alley, by an order issued by the state railroad commission, the railroad company was forbidden to continue the operation of its cars over and upon such spur track, unless and until the said alley was widened to a width of seventeen feet; that because of such order a condemnation proceeding was commenced by the plaintiff against several different defendants, including the defendant Commercial Iron Works of Los Angeles, who were the owners of respective properties that abutted upon said alley, and in said action the referees appointed made and returned their report to the trial court, to which report the said defendant duly excepted as to the failure of the referees to award to it any damages alleged to have resulted to said defendant, caused by the [333]cost of relocating a “private switch” that was owned by said defendant and which connected its property with the spur track of the Union Pacific Railroad Company. On the trial of the issue before the superior court, the evidence disclosed the fact that, at an appropriate time that had preceded the institution of the condemnation proceedings in question, the said defendant had duly protested the proposed widening of the alley in which the spur track was located, but that subsequently thereto, following an understanding had between the defendant and the Union Pacific Railroad Company to the effect that the latter, at its own expense, would relocate the “private switch” of the defendant, the said protest of the defendant was withdrawn. It thus was made to appear that the defendant suffered no pecuniary damage on account of the expense incident to the relocation of defendant’s “private switch”. On such foundational facts judgment was rendered by the trial court in accord with the said report of the referees; and it is from such judgment' that the appeal herein is prosecuted.

It is the contention of the appellant that, relying for authority therefor upon the provision of subdivision 6 of section 1248 of the Code of Civil Procedure, notwithstanding the fact that the relocation of its “private switch” was accomplished without cost to it, nevertheless, since the expense of such relocation of the “private switch” was borne by the railroad company in consideration of the withdrawal by the defendant of its protest to the widening of the alley, the defendant is entitled to have awarded to it the amount of money that was expended by the railroad company in that behalf.