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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 unconstitutional--subjecting 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 Code of Civil Procedure, 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 applicable 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 one 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.
The public use ceases upon the vacation of a highway, and private property is not taken or damaged by such proceeding. If damage results therefrom, it is damage without injury. Levee Dist. v. Farmer, 101 Cal. 180-184.
The rights of abutting owners upon a public road which has not been dedicated by the
owners of the land, and in respect to which there are no contract rights, or trust obligations of the public, are not such property as under the constitution must be paid for upon vacation of the public road, and the provisions of the Political Code conferring power upon boards of supervisors to vacate public roads are not unconstitutional because not authorizing the boards to assess damages caused thereby to abutting owners, nor to provide compensation to them. Levee District No. 9 v. Farmer, 101 Cal. 181.
The street law of 1889 [Stats. p. 90], provides sufficient notice to owners, and is not unconstitutional. Wulzen v. Supervisors, 101 Cal. 19-20.
An ordinance of the board of supervisors of San Francisco to open and extend Market street to the ocean, and declaring that all the land within the exterior boundaries of the street as extended "is hereby condemned, appropriated, acquired, set apart, and taken for public use," is an exercise of judicial power, in so far as it purports to condemn the land, and to that extent, is in excess of the jurisdiction of the board. Wulzen v. Board of Supervisors, 101 Cal. 24.
An act authorizing the formation of a levee district, and for issuing bonds or contracting debt in the nature of lien upon lands, and which provides for a petition by owner of majority of acreage only, with no discretion in supervisors to deny the petition, provides for no notice or protest or for change of proposed
boundaries, is violative of fundamental principles of the constitution. Brandenstein v. Hoke, 101 Cal. 133. See also, People v. Reclamation District No. 551, 117 Cal. 117.
A mere infringement of the owner's personal pleasure or enjoyment, or merely rendering the property less desirable for certain purposes, or even causing personal annoyance or discomfort, does not constitute a damage for which compensation must be made. But the right of the owner of a city lot to the use of the street adjacent thereto is property which cannot be taken without compensation; and any act by which this right is impaired is to that extent a damage to his property. Eachus v. L. A. Con. Ry. Co., 103 Cal. 616.
In an action to condemn a right of way, defendant received her costs upon the first trial, and Held, that under section 1254 Code of Civil Procedure, the costs of an unsuccessful attempt to obtain greater compensation by means of a new trial might be taxed against her. L. A., etc., Ry. Co. v. Rumpp, 104 Cal. 22.
A contractor upon a public work, who executes the work in a careful and proper manner, according to the plan, is not liable for consequential damage resulting from such work. Nor is a city liable where the damage is not the natural, immediate and certain consequence of the work. It is not incumbent on the city to provide for compensation where the damage is not the immediate, certain and natural consequence of the undertaking. DeBaker v. Railway Co., 106 Cal. 283.
One community cannot be suppressed for the benefit of another. Rights of riparian owners and dwellers cannot be taken for public use without compensation. People v. Elk River M. & L. Co., 107 Cal. 225.
The constitution of 1849 [Art. I, Sec. 8], provided that private property should not be taken for public use without just compensation, while the present constitution provides that it shall not be taken or damaged for public use without just compensation having been first made, etc. The word "damaged" is to be construed in its ordinary and proper sense, and embraces more than the direct taking. [Quoting from Riordan v. San Francisco, 66 Cal. 492.] Tyler v. Tehama County, 109 Cal. 622.
The owner of a lot abutting on a public street owns an easement in the street, which is property, independent of the ownership of the fee in the street, and independent of the public's right of way, and he cannot be deprived of this "property" by an authoritative "vacation" of the street, without compensation; and any act by which his right is impaired is to that extent a "damage" to his property. Bigelow v. Ballerino, 111 Cal. 560.
The legislature cannot authorize a public use which would deprive an owner of the "beneficial" use of his property, without providing also for just compensation therefor. Rudel v. Los Angeles County, 118 Cal. 288.
A law [Sec. 1191 C. C. P.], intended to give a mechanics' lien upon land by virtue of a