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state, and is not conferred by the constitution, and may be delegated by the legislature to any corporation or individual who will comply with the terms upon which the right is given. Moran v. Ross, 79 Cal. 159. See saine case, 79 CU. 519.

If compensation has not been had in condemning land taken for a public use under the statute for such proceedings, it can be recovered in an action. Bigelow v. City of Los Angeles, 85 Cal. 614.

Section 1254, 0. C. P., allowing an adequate fund to be paid into court, whereupon the court may authorize the plaintiff, if already in possession, to continue therein, and if not, then to take possession of and use the property during the pendency of and until final determination of the litigation is not in violation of the constitution. S. V. Water Works v. Drinkhouse, 95 Cal. 220.

The value of a private road constructed by the owner of land sought to be condemned for a public road is proper to be considered in fixing the compensation he should receive when that is part of the land to be taken, and the fact that he will have the benefit of a public instead of a private road, should not be considered in reduction or as an offset of his damages. Colusa Co, v. Hudson, 85 Cal. 633.

In the exercise of the right of eminent domain, the value of the land is to be determined as of the time when it is taken, and not at the time of issuing the summons in the case. Cal. So.R.R. Co. v. Colton L, & W. Co., 2 Pac. Rep. 38. See Cal. So. R. R. Co. v. Kimball, 61 Cal. 90.

The Code of Civil Procedure, section 1248, provides for ascertaining separately how much the land not sought to be condemned will be benefited by the improvement, and if the benefit shall be equal to the damage assessed under subdivision 2 of the section, the owner shall be allowed no compensation except the value of the portion taken, but it that benefit be less than the damage, the former shall be deducted from the latter, etc. Held, so far as the constitution imposes upon the party seeking to condemn a greater burden than is provided for in section 1248, C. 0. P., it is confined to private corporations and not to individuals, and that individuals are entitled to the deduction provided for by the code. Moran v. Ross, 79 Cal. 549.

Lots conveyed by alcalde grant in San Francisco, and not dedicated to the public, cannot be taken for use as street without condemnation and compensation. Spaulding v. Bradley, 79 Cal. 449.

The value of the land to be taken is not to be determined by what it would bring at forced sale, but it is the price which the owner could realize within a reasonable time at private sale. And the value is not to be governed by what it would bring for purposes for which it has been theretofore used, but its present value for prospective purposes is to be taken. San Diego Land, etc., Co. v. Neale, 78 Cal. 63.

Under our former system the method of ascertaining the compensation was by means of commissioners, while now the compensation is to be found by a jury, or by the court if a jury is waived, but the question of ownership is as distinct from that of compensation as it was formerly. San Diego Land, etc., Co. v. Neale, 78 Cal. 63.

No right of way is allowed over a public street for any other use than that of a municipal corporation, save upon compensation ascertained by a jury. Weyl v. Sonoma V. R. R., 69 Cal. 203.

The mode and manner prescribed by law for taking private property for public use must be strictly pursued. Lux v. Haggin, 69 Cal. 301.

The value of the land sought to be condemned should be determined as of the date of the issuance of the summons. Section 1249, 0. C. P., so providing, is not unconstitutional. Tehama Co, v. Bryan, 68 Cal. 57.

In condemnation proceedings by a railroad company for right of way, the compensation to be awarded the owner must be ascertained irrespective of any benefit that would accrue to the remainder of his land from the building of the road. Pacific Coast Ry. Co. v. Porter, 74 Cal. 261.

In an action to condemn a right of way for a rail


road, the plaintiff was ad judged to pay $11,954.00 as the cost of fences and cattle guards. Instead of paying the money plaintiff gave bond, under section 1251, C. C. P. The bond was signed by four sureties in the sum of six thousand dollars each. Held, insufficient, and that the court had no power to allow an amended bond to be filed after the expiration of thirty days from the entry of the judgment. Cal. So. R. R. Co. v. S. P. R. Ř. Co., 65 Cal. 293. The place of trial in such actions is in the county where the land to be taken is situated. Id. 409, 394. While perhaps the court may allow a new trial on the question of damages assessed, the verdict of the jury upon the assessment of the value of the property to be taken is in other respects conclusive. Same parties. 67 Cal. 62.

Section 2619 (prior to 1883) of the Political Code, declaring all roads used as such for a period of more than five years are highways, is in the nature of a statute of limitations, and is not unconstitutional. Bolger v. Foss, 65 Cal. 250.

Where an assessment for a reclamation district can only be enforced by suit, in which notice must be given to defendant, and he has the opportunity to be heard without restriction as to the defense he may interpose the constitutional provision as to due process of law is not violated. Reclamation Dist. No. 3 v. Goldman, 65 Cal. 635.

The act of March 26, 1878, (Stats. p. 777) authorizing the common council of Santa Barbara to lay out, etc., any street, etc., is unconstitutional in that it does not provide for any notice at all addressed to any person or class of persons or which would inform any particular person that, on failure of appearance, any burden would be imposed on him or his property. Boorman v. Santa Barbara, 65 Cal. 313.

The act of April 1, 1876, (Stats. p. 653) authorizing the city of Oakland to construct a bridge over estuary of San Antonio, and declaring that the costs should be assessed upon a certain specified district of lands therein declared to be benefited, and provid


ing for a commission to make the apportionment of the costs, to the lots of land designated by the act in proportion to the benefits, is not unconstitutional. Pac. Bridge Co. v. Kirkham, 64 Cal. 519.

Section 21 of the act of March 25, 1868, (Stats. p. 321), providing that whenever a petition shall be received by supervisors of Sutter county from persons in possession of more than half the acres of any specified portion of said county, asking to be set apart and erected into a levee district, said board shall at once erect such territory into a levee district, etc., provided, that it shall not be required to submit the question of tax to the vote of the people of any district so erected, is held unconstitutionalsubjecting private property to be taken by means of taxation without just compensation, for there is no investigation or determination as to benefits provided for. Moulton v. Parks, 64 Cal. 166.

Section 1249, C. C. P., which prescribes that for the purpose of assessing compensation and damages in certain cases the right thereto shall be deemed to have accrued at the date of the summons, is not inconsistent with the constitution. And it does not seem that the right to construct a railroad on a street should first be obtained from the municipal authorities before bringing an action to condemn the interest, of the owners of lands lying adjacent to the street. Cal. So. R. R. Co. v. Kimball, 61 Cal. 90.

The constitution provides for a proceeding in court in all cases where private property is to be taken for a public use and repeals a special law applicabie to Santa Clara county under which the supervisors of said county in February, 1880, by a final order and judgment established and ordered to be opened a public road over private land. Weber v. Supervisors 59 Cal. 265. This section is prohibitory and self executing, Id.; and Trahern v. Supervisors, Id. 320.

When, in the exercise of the right of eminent domain the state takes the property of a person, he has but cne right-and that is given him by the constitution—the right to compensation before he is deprived of his property. The right to take his property in no sense depends upon any contract between him and the public. His assent is not required, and his protestations are of no avail, but his property cannot be taken until paid for. Prior to that, no lien is impressed upon his property by reason of any preliminary proceedings. Until the price is ascertained the government is in no position to close the bargain; and when it is ascertained, if the sum is not satisfactory the government may withdraw, and it is under no obligation to take the land if the price is not satisfactory, Lamb v. Schottler, 54 Cal. 319.

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SECTION 15. No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud, nor in civil actions for torts, except in cases of willful injury to person or property; and no person shall be imprisoned for a militia fine in time of peace,

Under sections 861, 865 0. O. P., it must be proved to the satisfaction of the justice that there is a cause of action. An affidavit showing that an action has been commenced on an "alleged” indebtedness is not sufficient; and fraud in contracting the debt, or other fraud mentioned in said sections must also be shown in the affidavit by direct averment of facts constituting the fraud. In re Vinich, 86 Cal. 70.

SECTION 16. No bill of attainder, ex post facto law, or law impairing the obligation of contracts, shall ever be passed.

Const. 1849, Art. I, Sec. 16. A law fixing the punishment for murder, and which by amendment repeals a former law which prescribed a different punishment for the same offense, is ex post facto as to a murder committed while the former law was in force, and a person convicted since the enactment of the latter law, of murder committed while the former was in force, cannot be punished in the manner provided by the latter, but section 329 of the Political Code is a saving clause in the body of the general law of the state, and is sufficient to authorize the punishment to be inflicted which was prescribed by law at the time the offense was committed, where the amendatory

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