3585. Pleadings verified. The complaint and answer must be verified. [C. L. § 3802.

Cal. C. Civ. P. ? 1175.

3586. Appeal within ten days. Undertaking. Stay. Either party may, within ten days, appeal from the judgment rendered. But an appeal by the defendant shall not stay the execution of the judgment, unless, within said ten days, he shall execute and file with the court or justice his undertaking to the plaintiff, with two or more sureties, in an amount to be fixed by the court or justice, but which shall not be less than twice the amount of the judgment and costs, to the effect that, if the judgment appealed from be affirmed or the appeal be dismissed, the appellant will pay the judgment and the costs of appeal, the value of the use and occupation of the property, and damages justly accruing to the plaintiff during the pendency of the appeal. Upon taking the appeal and filing the undertaking, all further proceedings in the case shall be stayed. [C. L. § 3660*.

Cal. C. Civ. P. 978*.

3587.

Civil procedure applicable. The provisions of this code, relative to civil actions, appeals, and new trials, so far as they are not inconsistent with the provisions of this chapter apply to the proceedings mentioned in this chapter. [C. L. § 3804.

Cal. C. Civ. P. ? 1177*.

CHAPTER 65.

EMINENT DOMAIN.

3588. Exercised in behalf of what uses. Subject to the provisions of this chapter, the right of eminent domain may be exercised in behalf of the following public uses:

2.

1. All public uses authorized by the government of the United States. Public buildings and grounds for the use of the state, and all other public uses authorized by the legislature.

3. Public buildings and grounds for the use of any county, incorporated city or town, or school district; reservoirs, canals, aqueducts, flumes, ditches, or pipes for conducting water for the use of the inhabitants of any county, or incorporated city or town, or for draining any county, or incorporated city or town; for raising the banks of streams, removing obstructions therefrom, and widening, deepening, or straightening their channels; for roads, streets, and alleys, and all other public uses for the benefit of any county, incorporated city or town, or the inhabitants thereof.

4. Wharves, docks, piers, chutes, booms, ferries, bridges, toll roads, byroads, plank and turnpike roads, roads for transportation by traction engines or road locomotives, roads for logging or lumbering purposes, and railroads and street railways for public transportation.

5. Reservoirs, dams, water-gates, canals, ditches, flumes, tunnels, aqueducts, and pipes for supplying persons, mines, mills, smelters, or other works for the reduction of ores, with water for domestic or other uses, or for irrigating purposes, or for draining and reclaiming lands, or for floating logs and lumber on streams not navigable.

6. Roads, railroads, tramways, tunnels, ditches, flumes, pipes, and dump

ing places to facilitate the milling, smelting, or other reduction of ores, or the working of mines; outlets, natural or otherwise, for the deposit or conduct of tailings, refuse, or water from mills, smelters, or other works for the reduction of ores, or from mines; mill dams; natural gas or oil pipe lines, tanks, or reservoirs; also an occupancy in common by the owners or possessors of different mines, mills, smelters, or other places for the reduction of ores, of any place for the flow, deposit, or conduct of tailings or refuse matter.

7. By-roads leading from highways to residences and farms.

8. Telegraph, telephone, electric light, and electric power lines.

9. Sewerage of any city or town, or of any settlement of not less than ten families, or of any public building belonging to the state, or of any college or university.

10. Canals, reservoirs, dams, ditches, flumes, aqueducts, and pipes for supplying and storing water for the operation of machinery for the purpose of generating and transmitting electricity for power, light, or heat.

11. Cemeteries or public parks. '96, p. 316.

Cal. C. Civ. P. 1238. See Sup. '93, p. 995, and Sup. '95, p. 33, ? 1233*.

Eminent domain for pipes, tanks, etc., for natural gas, 1552; for right of way for canals, ditches, etc., 1277; for railroads, ? 436; for drainage district, 2773.

[C. L. § 3841*; '90, p. 37; '92, pp. 42, 92;

Under section 3841, C. L. 1888, providing that the right of eminent domain may be exercised in behalf of steam and horse railroads; held, that by implication this right may be exercised in behalf of electrical railways. Ogden City Railway Company v. Ogden City, 7 U. 207; 26 P. 288.

3589. Estates and rights subject to condemnation. The following is a classification of the estates and rights in lands subject to be taken for public

use:

1. A fee simple, when taken for public buildings or grounds, or for permanent buildings, for reservoirs and dams, and permanent flooding occasioned thereby, or for an outlet for a flow, or a place for the deposit of debris or tailings of a mine, mill, smelter, or other place for the reduction of ores.

2. An easement, when taken for any other use.

The right of entry upon, and occupation of, lands, and the right to take therefrom such earth, gravel, stones, trees, and timber as may be necessary for some public use. [C. L. § 3842*,

1. All real property belonging to any person.

2.

The private property

Lands belonging to the state, or to any county, or incorporated city or town, not appropriated to some public use.

3. Property appropriated to public use; provided, that such property shall not be taken unless for a more necessary public use than that to which it has been already appropriated.

4.

Franchises for toll roads, toll bridges, ferries, and all other franchises; provided, that such franchises shall not be taken unless for free highways, railroads, or other more necessary public use.

5. All rights of way for any and all purposes mentioned in section thirtyfive hundred and eighty-eight, and any and all structures and improvements thereon, and the lands held or used in connection therewith, shall be subject to be connected with, crossed, or intersected by any other right of way or improvement or structure thereon. They shall also be subject to a limited use in common with the owner thereof, when necessary; but such uses of crossings, intersections, and connections shall be made in the manner most compatible with the greatest public benefit and the least private injury.

6. All classes of private property not enumerated may be taken for public use when such taking is authorized by law. [C. L. § 3843.

Cal. C. Civ. P. 1240*.

Property and franchises of private corporations subject to eminent domain, Con. art. 12, sec. 11.

L

3591. Conditions precedent to condemnation. Before property can be taken it must appear:

1.

2.

3.

That the use to which it is to be applied is a use authorized by law.
That the taking is necessary to such use.

If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use. [C. L. § 3844.

Cal. C. Civ. P. 1241.

3592. Right to enter to make survey, etc. Damage. In all cases where land is required for public use, the person or corporation or his or its agents in charge of such use, may survey and locate the same; but it must be located in the manner which will be most compatible with the greatest public good and the least private injury, and subject to the provisions of this chapter. The person or corporation or his or its agents in charge of such public use, may enter upon the land and make examinations, surveys, and maps thereof, and such entry shall constitute no cause of action in favor of the owners of the lands, except for injuries resulting from negligence, wantonness, or malice. [C. L. § 3845. Cal. C. Civ. P. ? 1242*.

3593. Jurisdiction in district court. Complaint verified. All proceedings under this chapter must be brought in the district court for the county in which the property or some part thereof is situated. The complaint in such cases must be verified. [C. L. § 3846*.

Cal. C. Civ. P. ? 1243*.

3594. Contents of complaint. The complaint must contain:

1. The name of the corporation, association, commission, or person in charge of the public use for which the property is sought, who must be styled plaintiff. The names of all owners and claimants of the property, if known, or a statement that they are unknown, who must be styled defendants.

2.

3. A statement of the right of the plaintiff.

4.

If a right of way be sought, the complaint must show the location, general route, and termini, and must be accompanied with a map thereof, so far as the same is involved in the action or proceeding.

5. A description of each piece of land sought to be taken, and whether the same includes the whole or only part of an entire parcel or tract. All parcels lying in the county and required for the same public use may be included in the same or separate proceedings, at the option of the plaintiff, but the court may consolidate or separate them to suit the convenience of parties. [C. L. § 3847. Cal. C. Civ. P. 2 1244*. debtedness are owners " hereunder. O. S. L. and SUBDV. 2. Grantors in trust deed to secure in- U. N. Ry. Co. v. Mitchell, 7 U. 505; 27 P. 693.

3595. All parties in interest may appear. All persons in occupation of, or having or claiming an interest in, any of the property described in the complaint, or in the damages for the taking thereof, though not named, may appear, plead, and defend, each in respect to his own property or interest, or that claimed by him, in like manner as if named in the complaint. [C. L. § 3849. Cal. C. Civ. P. ? 1246.

3596. Power of the court. The court or judge thereof shall have

power:

1. To determine the conditions specified in section thirty-five hundred and ninety-one; to determine the places of making connections and crossings, and to regulate the manner thereof and of enjoying the common use mentioned in the fifth subdivision of section thirty-five hundred and ninety.

2. To hear and determine all adverse or conflicting claims to the property sought to be condemned, and to the damages therefor.

3. To determine the respective rights of different parties seeking condemnation of the same property. [C. L. § 3850.

Cal. C. Civ. P. ? 1247*.

3597. Occupancy of premises pending action. Notice. Hearing. Bond. Restraining order. The plaintiff may move the court or a judge thereof, at any time after the commencement of suit, on notice to the defendant, if he is a resident of the county, or has appeared in the action, otherwise by serving a notice directed to him on the clerk of the court, for an order permitting the plaintiff to occupy the premises sought to be condemned, pending the action, and to do such work thereon as may be required for the easement sought, according to its nature. The court or a judge thereof shall take proof by affidavit or otherwise, of the value of the premises sought to be condemned and of the damages which will accrue from the condemnation, and of the reasons for requiring a speedy occupation, and shall grant or refuse the motion according to the equity of the case and the relative damages which may accrue to the parties. If the motion is granted, the court or judge shall require the plaintiff to execute and file in court a bond to the defendant, with sureties to be approved by the court or judge, in a penal sum to be fixed by the court or judge, not less than double the value of the premises sought to be condemned and the damages which will ensue from condemnation, as the same may appear to the court or judge on the hearing, and conditioned to pay the adjudged value of the premises and all damages in case the property is condemned, and to pay all damages arising from occupation before judgment in case the premises are not condemned, and all costs adjudged to the defendant in the action. The sureties shall justify before the court or judge after a reasonable notice to the defendant of the time and place of justification. The amounts fixed shall be for the purposes of the motion only, and shall not be admissible in evidence on final hearing. The court or judge may also, pending the action, restrain the defendant from hindering or interfering with the occupation of the premises and the doing thereon of the work required for the easement. ['92, pp. 2-3*.

3598. Damages, how assessed. The court, jury, commissioners, or referee must hear such legal testimony as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess:

1. The value of the property sought to be condemned and all improvements. thereon pertaining to the realty, and of each and every separate estate or interest therein; if it consists of different parcels, the value of each parcel and of each estate or interest therein shall be separately assessed.

2. If the property sought to be condemned constitutes only a part of a large 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. If the property, though no part thereof is taken, will be damaged by the construction of the proposed improvement, the amount of such damages.

4. 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 of this section, 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 of the portion taken.

5. If the property sought to be condemned be for a railroad, the cost of good and sufficient fences along the line of such railroad between such railroad and other adjoining lands of the defendant; and the cost of cattle guards where fences may cross the line of such railroad.

6. As far as practicable, compensation must be assessed for each source of damages separately. [C. L. § 3851*.

Cal. C. Civ. P. ? 1248*.

Private property shall not be taken or damaged for public use without just compensation, Con. art. 1, sec. 22.

Where receiver built over unoccupied public land to which a party afterward acquires title, he cannot recover as damages the value of the rail

road's improvements. Denver & R. G. W. Ry. Co. v. Stancliff, 4 U. 117; 7 P. 530.

Where land taken in good faith for the erection of a schoolhouse, the owner not being known, but with intention to acquire title by proceedings in

eminent domain, if he should not consent to such use of it, he cannot recover as damages the value of such schoolhouse. Chase v. Jemmett, 8 U. 231; 30 P. 757.

3599. Damages deemed accrued at date of service. For the purpose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the service of 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 the last section. No improvements put upon the property subsequent to the date of service of summons, shall be included in the assessment of compensation or damages. [C. L. $3852.

Cal. C. Civ. P. ? 1249*.

3600. Action begun anew where defendant's title defective. 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 chapter prescribed. [C. L. § 3853.

Cal. C. Civ. P. 1250.

3601. Damages to be paid within thirty days. Bond for railroad fence. The plaintiff must, within thirty days after final judgment, pay the sum of money assessed; and, if the plaintiff is a railroad company, it shall also execute to the defendant a bond, with sureties, to be determined and approved by the court or judge, conditioned that the plaintiff shall build proper fences within six months from the time the railroad is built on or over the land taken. In an action on the bond all damages sustained and the cost of the construction of such fences may be recovered. [C. L. § 3854*.

Cal. C. Civ. P. ¿ 1251*.

3602. Id. To whom paid. Execution if not paid. Annulling proceedings. 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 defendants if possession has been taken by the plaintiff. [C. L. § 3855.

Cal. C. Civ. P. 1252.

3603. Final order made upon payment. Recording same. 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 purpose 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 purpose therein specified. [C. L. § 3856.

Cal. C. Civ. P. ? 1253.

3604. Authorizing occupancy by plaintiff. Deposit. Payment. Effect. At any time after the entry of judgment, or pending an appeal from the judgment to the supreme court, whenever the plaintiff shall have paid into court for the defendant the full amount of the judgment, and such further sum as may be required by the court as a fund to pay any further damages and costs that may be recovered in said proceedings, as well as all damages that may be sustained by the defendant, if for any cause the property shall not be finally taken for public use, the district court in which the proceeding was tried may, upon notice of not less than ten days, authorize the plaintiff, if already in possession, to continue therein, and if not, then to take possession of and use the