San Francisco & North Pacific Railraod v. Taylor

Belcher, C. C.

— This is an action to condemn a right of way for a railroad across a piece of swamp and overflowed land owned by the defendant. Judgment of condemnation was entered in the court below, from which, and from an order denying a new trial, the defendant appeals. The only question involved in the case relates to the measure of compensation which the defendant was entitled to claim and receive for the strip of land taken. The facts affecting this question are as follows: In the year 1860, one Blatehley made application to purchase from the state a tract of swamp and overflowed land situate in Marin County, and known as “ Survey No. 55.” He paid twenty per cent of the purchase price, and one year’s interest on the remaining eighty per cent thereof, and in April, 1861, received a certificate of purchase. He never made any further payments of interest or principal. In July, 1882, he assigned his certificate of purchase to the defendant, and in January, 1883, the latter obtained from the state a patent for the land. In 1876, the Sonoma and Marin Eailroad Company, the grantor of the plaintiff, constructed a road-bed across the said land, and in 1878 laid its track thereon. Since 1876 the said company and the plaintiff, its successor in interest, have been continuously in possession of the strip so taken, and using it for the purposes of a railroad. Whether Blatehley knew of the construction of the railroad across this land, or whether he consented or objected to its construction thereon, does not appear. It would seem, however, that he must have known of it between the years 1876 and 1882, unless he had abandoned his intention to complete the purchase, or was more than ordinarily careless in regard to his own affairs. Shortly after obtaining his patent, the defendant commenced an *248 action to eject the plaintiff from the possession of the said strip, and before that case was brought to trial, this proceeding was instituted. At the trial of this case, the defendant claimed that he was entitled to have the value of all improvements placed on the land by the plaintiff and its predecessor in interest included in the compensation which should be awarded to him. The court allowed, him the value of the land, but not of the improvements, and hence this appeal. The case is not materially different from that of Albion R. R. Co. v. Hesser, 84 Cal. 435 . Iu that case it was held, on the authority of California P. R. R. Co. v. Armstrong, 46 Cal. 85 , and other cases cited, that the defendant was not entitled to he paid the value of improvements placed upon the land by the company before' the commencement of the condemnation proceedings; and the rule there declared seems to be in accord with the weight of authority. We think that case decisive of this, and therefore advise that the judgment and order be affirmed.

Foote, C., and Hayne, C., concurred.

The Court. — For the reasons given in the foregoing opinion, the judgment and order are affirmed.