Summary
Appeal from the Seventh District.
Proceedings to condemn land. For the previous history of the case, see Gilmer v. Lime Point (18 Cal. 229). As stated in that case, the United States District Attorney joined issue as to the constitutionality of the Act of 1859, 26, mentioned in the plea of Throckmorton, and averred the use named in the application herein to be a “ public use,” within the Constitution of California. He also demurred to the plea of Throckmorton on the ground that it “ undertakes to traverse and avoid certain allegations in the said application made, which are not traversable or avoidable in said proceeding.” After the return of the cause to the Court below, in pursuance of the opinion of this Court, the following proceedings were had :
Barton Ricketson filed an amended intervention setting out particularly his claim, to wit: a mortgage executed in 1852 by Wm. A. Richardson, grantee from the Mexican Government, of a ranch known as the Saucelito Rancho, embracing Lime Point, to secure three notes, amounting to $9,220, drawing five per cent, per month interest, excepting one for $8,820, which drew six per cent, per month.
This amended intervention waives all “ right to the action of this Court, in its proceeding to condemn said tract, and submits to a fair valuation thereof according to law.”
Throckmorton filed the following answer, verified :
“ And now comes S. R. Throckmorton, one of the defendants, and for answer to the application of the complainant, says: He admits that the United States have been desirous of purchasing the tract of land mentioned, but denies that they are now desirous of doing so, having already purchased said land, as hereinafter mentioned. He denies that any disagreement in price has ever existed since February 19th, 1858, the date of said purchase, or now exists between himself and the United States concerning the purchase of said land. He admits he demanded two hundred thousand dollars therefor, and avers that the United States made an agreement, evidenced by writing, to pay him that sum therefor, as is hereinafter mentioned. And if, by the complaint’s allegation that this defendant has declined and now declines to receive a less sum, it be meant that the United States has ever offered him a less sum for the said tract, then this defendant denies that he has ever declined to take for said tract the said sum of $200,000, or any greater or any less sum, offered him by the said United States, and he denies that he has ever declined any offer whatever made to him therefor by the United States. And he denies that the sum of $200,000 is an unreasonable and excessive price for said land, but on the contrary, avers that it is worth much more money. And he avers that neither the United States, nor any one on their behalf, has ever, at any time, rendered him any sum of money as the price, or made him any offer of any price different from that agreed on as hereafter mentioned; and he avers that no demand has ever been made upon him by any one at any time to convey said land to the United States. And he denies that he has ever refused, and he denies that he now refuses to convey the said land to the United States, for any reason whatever, and he denies that he has been often, or ever once, requested to do. so ; and he avers on information and belief, that on March 3d, 1857, Congress appropriated three hundred thousand dollars for the purchase of said tract and the commencement of defensive works thereon ; and he avers that in the years 1855 and 1856 certain military officers of the United States negotiated with this defendant, for the purchase of said land, and on or about February 19th, 1858, the United States purchased said land of this defendant for the sum of two hundred thousand dollars. And he avers that he is owner of lands of Rancho Saucelito, of which the lands aforesaid is a part, and that said lands of the Rancho Saucelito adjoining the boundaries mentioned in complainant’s application will be rendered less accessible and lessened in value if the land described in said application be used for military purposés, to the great damage of this defendant. Wherefore he prays this application be dismissed, with costs.”
J. Mora Moss intervened, claiming to be the owner of a mortgage upon the land in question, also executed by said Richardson, and of a decree foreclosing the same; and denying that the United States are desirous of purchasing the land; averring that it was purchased of Throckmorton, the owner thereof, February 19th, 1858, for $200,000, adopting Throckmorton’s answer, and praying that the proceedings be dismissed.
William Hood, Benjamin Davidson, and John Young, executor of the estate of Robert Walkinshaw, deceased, intervened, also claiming to be the owners of a mortgage amounting to about $400,000, drawing interest at five per cent, per month; denying that the United States are desirous of purchasing the land; averring Throckmorton to be the owner, joining in most of his allegations, and averring also that the proceedings herein are irregular, informal and that proper notice has not been given, etc.; that the same was improperly and irregularly made and issued by the Sheriff, when it should have been made and issued by and from the Court or the Judge thereof; that said notice was not published as appears by the proof of publication thereof as by law required; that the same should have been published in at least two newspapers, one published nearest the land, and also one published in San Francisco. Also, that the day for empannelling the jury is passed, and the Court has no power or jurisdiction to empannel a jury under the said notice; and praying that the proceedings be dismissed.
To the answer of Throckmorton and the intervention of Moss, the applicant demurred, on the grounds: 1st, that the said answer does not state facts sufficient to constitute a defense for the reasons following among others:
It traverses the desire, to purchase alleged in the application, which is not permissible, because that fact is merely preliminary to the issue of the order of notice, and is only required to appear by the application, and heeds no other proof;
It traverses the allegations of disagreement, which is not permissible for the same reason;
It avers that Throckmorton declined to take any particular sum for the tract in question, which is irresponsive to anything alleged in the complaint;
It traverses the allegation that Throckmorton refused to convey to the United States.
To the intervention of Hood, Davidson and Young, applicant demurred, on the ground, that it does not state facts sufficient to con- ' stitute a defense: because, 1st, it traverses the allegation that the United States desire to purchase the land; and because, 2d,-it sets up purchase of the land by the United States.
A. G. Dallas intervened, claiming as owner of a decree foreclosing a mortgage executed by Richardson, amounting to $35,055.33, and ordering the Saucelito Rancho to be sold to pay it. Prayer that if the land he condemned, intervenor’s interest be protected.
John Parrott intervened, claiming a lien on the land by virtue of a judgment against Richardson for $7,969.10, with interest thereon at four per cent, per month, duly recorded in Marin county where the land lies.
The applicant filed the following replication:
And now comes Gilmer by his counsel, Benham, and for replication to the answers and interventions filed in the above entitled proceedings, says: that upon information and belief, he reiterates his allegation, that $200,000 is an unreasonable and excessive price for the tract of land described in his application, and he denies, upon information and belief, that the same is not an excessive, unreasonable and exorbitant price for the said tract. And he says, that he is informed and believes, that the lands, part of the Rancho of Saucelito, adjoining the said tract called Lime Point, will not be lessened in value if the said tract is used for military purposes, and he therefore denies, upon his information and belief, that the said adjoining lands will be lessened in value on account of said use to the great damage of said Throckmorton, and denies that it is material, and avers that it is not material what effect is produced on said adjoining lands. And he denies, upon his information and belief, that the said adjoining land will be rendered less accessible to the great damage of the said Throckmorton by being used for military purposes, or that they will be lessened in value on account of any change in the accessibility caused by their being so used; and denies that it is material, and avers it is not material what effect is produced on said adjoining lands by such use. And he says he is advised by his counsel, and believes, as it is decided by the Court now here, that the proceedings had by him in this behalf are not irregular, informal and insufficient in law, and he therefore denies that the same are irregular, informal and insufficient in law. And he says the notice given in this cause by Valentine Doub, Esq., the Sheriff of the county of Marin, was made, published and styled properly and according to law; and he denies that the same was not made, published and styled properly and according to law. And he says that the day for empannelling a jury has not passed, and that the Court'has full power to empannel a jury. Prayer for a jury to assess the value of the land.
This cause was called for trial at the July Term, 1861. The defendant objected to proceeding with the trial, on the grounds following, to wit:
1st. The notice to all parties interested, required by the statute, had not been given, as it appeared that publication had been made in one newspaper only, and had not issued or been made by the Court.
On the trial, defendants’ objection to proceeding on several grounds, as want of due notice, etc., having been overruled, the demurrer of the applicant to the plea to the jurisdiction filed by defendant, Throckmorton, was argued, and the plea overruled as insufficient in law, the defendant excepting.
The applicant’s demurrer to the answers of the defendants, Throckmorton, Hood, Davidson, and Young, executor, etc., Parrott, Dallas and Moss, was sustained, and said answers adjudged insufficient in law, in so far as they set up and averred the existence of a contract between defendant Throckmorton and the United States, for the purchase of the land in question, and in so far as said answers denied that said United States were desirous of purchasing said land, and in so far as said answers denied that said Throckmorton had refused to convey said land to the United States, and in so far as said answers denied the existence of a disagreement in price between the United States and defendant Throckmorton touching the purchase of said land; and the defendant excepted to the ruling of the Court sustaining said demurrer. Defendants here introduced various witnesses as to the value of the land.
The defendants, in order to show the value of said land, offered in evidence certain documents numbered eleven, twelve, twenty-four, twenty-nine, thirty, thirty-one, thirty-two, thirty-three, to be found in the Report Uo. 389 of the Senate Committee on Military Affairs and the Militia of the 35th Congress, 2d Session, on pages 20, 21, 22, 29, 32, 33, 34, 35, and three other documents, which documents defendants offered as a contract between the defendant Throckmorton and the United States for the purchase of the said tract of land at the price of $200,000.
The applicant objected to the evidence, on the ground of - irrelevancy to the issue, that it was hearsay; did not prove a contract; was no estoppel; would present to the jury by indirection, what it had been ruled by the Court was not for their consideration; that is to say, the question, whether or not there had been a purchase of the said tract by the United States, as claimed by virtue of the documents aforesaid; would abuse the minds of the jury and induce them to adopt the sum of $200,000, fixed by the said supposed contract, by their verdict, as the value of the said tract, regardless whether it coincided with the true value of the same or not.
The Court sustained the objection and ruled out the evidence, and the defendants excepted.
James B. McPherson, a lieutenant in the corps of Engineers of the United States Army, and who had examined the premises, and a 'witness for Throckmorton and the contesting interveners, was asked by them counsel the question: What is the value of the premises as a site for fortification ? The same question was asked of James Ross, also a witness for the defendants. Whereupon, counsel for the applicant objected to the question, on the grounds that the value of the premises as a site for fortification was a future prospective value, and was inappreciable in money, and could not be measured thereby for want of a safe, certain and practical standard. And that the premises could not have a market value, particularly as a site for fortification, because there was no market for land for such purposes, competition being essential to a market, and the Government being of necessity without a competitor in purchases of land for purposes of fortification. That the question was calculated both in substance and form to mislead the jury. That, as the only limitation which could be put on the exercise of the right of the eminent domain was to make what the Constitution provided for—“ compensation ” to the owner, to offer testimony to prove the value of the premises as a site for fortification, (which it was impossible to estimate) was therefore to address the evidence, not to the issue—the ascertainment of what would be “ compensation ” to the owner—but the discovery of the extent of the peculiar benefit to the purchaser. That it was otherwise irrelevant, and that any present market value the premises might have peculiarly as a site for fortification, if they could have any such, could be predicated only upon their susceptibility of being made the instrument of obtaining from the Government more than the value of the same for purposes to which an individual might apply the same; and that it was against the policy of' the law to recognize any such value as an element of the aggregate value of the premises, both on the score of morality and public economy.
The Court sustained the objection, ruled out the evidence, and the defendants excepted.
The Court then charged the jury, who returned a verdict that the land was worth $125,000, and the Court upon the verdict adjudged the said land to be worth $125,000.
Defendants and interveners appeal.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
