Page images
PDF
EPUB

2. If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned, by reason of its severance from the portion sought to be condemned, and the construction of the improvement in the manner proposed by the plaintiff.

3. Separately, how much the portion not sought to be condemned, and each estate or interest therein, will be benefited, if at all, by the construction of the improvement proposed by the plaintiff; and if the benefit shall be equal to the damages assessed, under subdivision two, the owner of the parcel shall be allowed no compensation except the value of the portion taken; but if the benefit shall be less than the damages, so assessed, the former shall be deducted from the latter, and the remainder shall be the only damages allowed in addition to the value.

4. If the property sought to be condemned be for a railroad the cost of good and sufficient fences along the line of such railroad, and the cost of cattle guards where fences may cross the line of such railroad.

5. As far as practicable, compensation must be assessed for each source of damage separately.

41 Cal. 356.

1249. For the purpose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the summons, and its actual value, at that date, shall be the measure of compensation for all property to be actually taken, and the basis of damages to property not actually taken but injuriously affected, in all cases where such damages are allowed as provided in section twelve hundred and forty-eight. If an order be made letting the plaintiff into possession, as provided in section twelve hundred and fiftyfour, the compensation and damages awarded shall draw lawful interest from the date of such order. No improvements put upon the property, subsequent to the date of the service of summons, shall be included in the assessment of compensation or damages.

1250. If the title attempted to be acquired is found to be defective from any cause, the plaintiff may again institute proceedings to acquire the same, as in this title prescribed. 18 Cal. 29; 24 Cal. 427; 29 Cal. 112.

1251. The plaintiff must, within thirty days after final judgment, pay the sum of money assessed; but may at the time of or before payment, elect to build the fences and cattle guards, and if he so elect, shall execute to the defendant a bond, with sureties to be approved by the court in double the assessed cost of the same, to build such fences and cattle guards within eighteen months from the time the railroad is built on the land taken, and if such bond be given, need not pay the cost of such fences and cattle guards. In an action on such bond, the plaintiff may recover reasonable attorney's fees.

1252. Payment may be made to the defendants entitled thereto, or the money may be deposited in court for the defendants, and be distributed to those entitled thereto. If the money be not so paid or deposited, the defendants may have execution as in civil cases, and if the money cannot be made on execution, the court, upon a showing to that effect, must set aside and annul the entire proceedings and restore possession of the property to the defendant, if possession has been taken by the plaintiff.

§ 1253. When payments have been made and the bond given, if the plaintiff elects to give one, as required by the last two sections, the court must make a final order of condemnation, which must describe the property condemned and the purposes of such condemnation. A copy of the order must be filed in the office of the recorder of the county, and thereupon the property described therein shall vest in the plaintiff for the purposes therein specified.

§ 1254. At any time after service of summons, 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 and until the final conclusion of such proceedings, and may stay all actions and proceedings

against the plaintiff on account thereof; but the plaintiff must give security, to be approved by such court or judge, to pay, as well the compensation in that behalf when ascertained, as all damages which may be sustained by the defendant, if for any cause the property shall not be finally taken for public use. 46 Cal. 32; 47 Cal. 70, 519; 49 Cal. 241.

1255. Costs may be allowed or not, and if allowed, may be apportioned between the parties on the same or adverse sides, in the discretion of the court.

1256. Except as otherwise provided in this title, the provisions of Part II of this code are applicable to and constitute the rules of practice in the proceedings mentioned in this title.

§ 1257. The provisions of Part II of this code relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this title, apply to the proceedings mentioned in this title.

§ 1258. With relation to the acts passed at the present session of the legislature, this title must be construed in the same manner as if this code had been passed on the last day of this session, and from and after the time this code takes effect, all laws of this state in relation to the taking of private property for public uses are abolished, and all proceedings had in the exercise of the powers of eminent domain must conform to the provisions of this title. 46 Cal. 32.

1259. Title VII of Part III of the code of civil procedure of the State of California (this title) shall be in force and effect from and after the fourth day of April, one thousand eight hundred and seventy-two.

1260. From and after the time this title takes effect, it must be construed in the same manner as it would be were sections four and seventeen of this code in force and effect.

1261. No proceeding to enforce the right of eminent domain commenced before this title takes effect, is affected by the provisions of this title.

§ 1262. Until the first day of January, one thousand eight hundred and seventy-three, at twelve o'clock noon, the provisions of sections 1256 and 1257 of this title are suspended, and until then, except as otherwise provided in this title, the rules of pleading and practice in civil actions now in force in this state are applicable to the proceedings mentioned in this title, and constitute the rules of pleading and practice therein.

§ 1263. Nothing in this code must be construed to abrogate or repeal any statute providing for the taking of property in any city or town for street purposes.

C. C. P.-35

TITLE VIII.

OF ESCHEATED ESTATES.

SECTION 1269. Manner of commencing proceedings relative to escheated estates.

1270. Receive: of rents and profits may be appointed.

1271. Appearance, pleadings and trial.

1272. Proceedings by persons claiming escheated estates.

1269. When the attorney-general is informed that any real estate has escheated to this state, he must file an information in behalf of the state, in the district court of the judicial district in which such estate, or any part thereof, is situated, setting forth a description of the estate, the name of the person last seized, the name of the occupant and person claiming such estate, if known, and the facts and circumstances in consequence of which the estate is claimed to have escheated, with an allegation that, by reason thereof, the state of California has right by law to such estate. Upon such information, a summons must issue to such person, requiring him to appear and answer the information within the time allowed by law in civil actions; and the court must make an order, setting forth briefly the contents of the information, and requiring all persons interested in the estate to appear and show cause, if any they have, within forty days from the date of the order, why the same should not vest in this state; which order must be published at least one month from the date thereof, in a newspaper published in the district, if one be published therein, and in case no newspaper is published in the district, in some other newspaper in this state.

Stat. 1853, 221-2, § 2, inserted the words "or have reason to believe" between "informed" and "that any real estate; "also between "state" and he must file," the words "by reason that any person hath died seized thereof, and hath left no heirs capable of inheriting the same, or by reason of the incapacity of the devisees to hold the same, or when he shall be informed or have reason to believe that any such estate hath otherwise escheated to the state;" also "terre-tenant" instead of "occupant;" also the words "or persons, bodies politic or corporate alleged in

« PreviousContinue »