7. EMINENT DOMAIN-PROCEEDINGS-DEFENS

ES.

In condemnation proceedings by a railroad, the good faith of the corporators in forming the corporation cannot be called in question. 8. SAME.

A corporation not organized for railroad purposes was authorized by the supervisors of a county to build a railroad along a certain highway, but subsequently the building was enjoined. Thereafter a railroad company was incorporated and petitioned for a franchise to build along the highway; the petition being accompanied by a waiver of the franchise granted the other corporation. Held, in condemnation proceedings by the railroad to condemn a right of way along the highway, that the owner of the land could not object on the ground that the former corporation had not conveyed to the railroad its right of way, under Civ. Code, § 494, relating to sales of property by one railroad to another. 9. SAME-PUBLIC USE-WHAT CONSTITUTES.

The fact that the advantage of a railroad inures to a particular individual or class of individuals does not render the use not public. 10. SAME.

The fact that a railroad corporation has been formed to build a road to connect with another one, and be a branch thereof, does not render the use by such corporation not a public

Code Civ. Proc. § 2032, provides that a deposition may be used by either party on the trial, subject to all legal objections except "to the form of an interrogatory." Defendant took plaintiff's deposition, but plaintiff offered it in evidence, and during the reading thereof objected to a question which called for the "deliberate judgment" of a witness as to a matter, and not as to the facts of the matter. Held, that plaintiff was not estopped to object to the question.

16. EMINENT DOMAIN - PROCEEDINGS AGES-EVIDENCE-ADMISSIBILITY.

- DAM

In proceedings by a railroad to condemn a right of way along a highway over defendant's lands, it was proper, on the question of defendant's damages, to exclude evidence as to the condition in which the highway was left by plaintiff's grading at points other than that along defendant's land.

17. SAME.

In condemnation proceedings by a railroad to condemn a right of way along the highway over defendant's land, there was no prejudicial error in admitting on behalf of plaintiff the testimony of a witness on the question of damages when the condemnation for the highway was before the court, the court limiting the testimony to the value of the land, and on condition that it be shown that the value had not changed.

[Ed. Note. For cases in point, see vol. 18, Cent. Dig. Eminent Domain, § 542.]

Appeal from Superior Court, Madera County; L. W. Fulkerth, Judge.

Proceedings by the Madera Railway Company against the Raymond Granite Company and another for the condemnation of lands, and, from the judgment of condemnation, the granite company appeals. Affirmed.

Robert L. Hargrove, for appellant. C. H. Oatman and T. C. West, for respondent railway company. R. R. Fowler, Dist. Atty., for respondent county.

CHIPMAN, P. J. Condemnation of land for right of way. The complaint alleges the due incorporation of plaintiff under the laws of this state "for the purpose, among other things, of constructing, owning, maintaining and operating a single track railway of a standard gauge, to be operated by steam, for the carrying of passengers and freight thereon and thereover for hire, commencing at 'Curtis' Station' situated at the intersection of the branch of the Southern Pacific Railroad known as Knowles Spur at the crossing of the 'McLennan Road' in section No. 22, township 8 south, ranch 19 east M. D. B. & M.; thence in a southerly direction along said McLennan Road to McGowan Station,' situated about eight hundred feet south of Madera Granite Company's quarry in the southeast quarter of section 27," said township and range. The complaint describes with particularity the strip of land required, as shown on a map attached to the complaint and marked "Exhibit A," copy of which is attached to the transcript. The area of land sought to be condemned is .62 acres, and "the same does not include the whole, but is only a part of an entire tract of land" and is situated in Madera county. That defendant company "is the owner of an interest in said tract of land, hereinbefore particularly described, and also the larger tract of land of which it is a part." That the defendant county "is the owner of an easement over said tract of land, and the same is now used as a highway for vehicles and pedestrians to pass over. That the said tract of land herein sought to be taken consists of the west half of said highway and will not in any manner impede or interfere with the use of said highway." It is also averred that "the taking of said strip of land is for a more necessary public use than that to which it has already been appropriated,"

and that the "said railroad of plaintiff has been located in the manner which will be the most compatible with the greatest public good and the least private injury," and "that the taking of said strip of land is for a public use, to wit, the right of way of said railroad of plaintiff." Defendant county made no answer, and its default was duly entered. Defendant company answered, denying specifically that the plaintiff was incorporated for the purposes alleged, and also denied practically all the averments of the complaint; avers that plaintiff was incorporated "by the officers and agents of the Madera Granite Company for the convenience, use and benefit of said Madera Granite Company," a corporation operating a granite quarry near the terminus of plaintiff's said railroad; that said railroad commences "at a fictitious place called 'Curtis Station' and terminates on the private land of said Madera Granite Company less than one mile distant; that there are no such stations as 'Curtis' or 'McGowan' stations;" that said Madera Granite Company "is and has been for a long time extracting rock from its private land marked McGowan Station for market, and is and for a long time has been hauling the said rock by wagons and teams over said McLennan road to the said railroad of the Southern Pacific Company, and from there transports the same over said Southern Pacific's railroad to market"; that plaintiff was incorporated for the sole purpose of tak. ing advantage of the law of eminent domain and of commencing this suit for the private benefit of the Madera Granite Company; that said railroad does not terminate or commence at public places; that its termini are on private grounds, and so situated as to be of no benefit to the public; that defendant company owns all the land about the place called Curtis Station, and the station called McGowan is upon lands of plaintiff, and no public roads lead to said station except said McLennan road, which terminates at that station; that "plaintiff has no passenger cars, locomotives, or cars at all, nor does it intend to operate any to carry any freight or passengers for the convenience of the public or otherwise"; that the purpose of building said railroad was to transport the rock of said quarry of the Madera Granite Company to the Southern Pacific's railroad; that plaintiff has made high fills and grades upon said strip of land in such manner as to prevent defendant from crossing said highway to and from its adjoining lands and to prevent the use of the west half of said highway for teams and wagons. The court made findings substantially as alleged in the complaint: That defendant company is the owner in fee of the land sought to be taken, subject to the easement thereover for the McLennan private road, which said easement is owned by defendant county, and the same is a public highway; that the interest of defendant company in said strip of land is of

the value of $125,000, and the damage to the contiguous land of defendant company is the sum of $500. The court further found against defendant company on the specific facts alleged in defense. Thereupon the court made its preliminary order and judgment of condemnation, which was thereafter followed by its final judgment of condemnation. From this latter judgment, and from the order denying its motion for a new trial, defendant company appeals.

The transcript comprises about 500 pages, appellant's brief about 150 pages, and respondent's brief half the number. Obviously some way must be found to bring into reasonable compass the salient questions of law and fact before us. There are certain principles of law governing condemnation cases, discussed by the respective parties, which may as well be disposed of here as elsewhere.

1. "The right of eminent domain may be exercised in behalf of the following public uses: (4) Steam * * railroads. *

Code Civ. Proc. § 1238. Counsel for respondent contends that this declaration of the Legislature raises the presumption that the railroad in controversy must be presumed to be a public use, and that the burden of proving the contrary is upon the defendant. It was held in Napa Valley R. R. v. Napa County, 30 Cal. 435, that "railroads concern the public interest as matter of legal judgment; and however that conclusion be opposed to the fact in the case at bar makes no difference, the action of the Legislature on the question not being open to review by the judicial department of the government." So held, also. in S. & V. R. R. Co. v. City of Stockton, 41 Cal. 147. In both these cases, however, the railroads in question were authorized by special act of the Legislature, and it would have been an unwarranted interference with legislative discretion for the courts to inquire into the policy or wisdom of the Legislature, in declaring that the building of these particular roads concerned the public interest. The early case of Contra Costa R. Co. v. Moss, 23 Cal. 324. is of this class, also. Another class of cases is found in our reports, of which County of San Mateo v. Coburn, 130 Cal. 631, 63 Pac. 78, 621, is an example. There the board of supervisors had determined the necessity of opening a public road by a certain route, and later found it necessary to bring the action to condemn a right of way over a portion of the land required for the road. "Roads" are among the public uses declared by the Code section above cited. And it was held that the court could not inquire into the necessity for the highway, its location, and extent, as these were matters of a political or legislative character. But in that case it was shown that the statute (Pol. Code, § 2681 et seq.) "has established a tribunal for determining these questions. If this tribunal proceeds in accordance with the provisions of

* **

these sections, it acquired jurisdiction to determine these questions, and its determination is not subject to collateral attack. In a proceeding thereafter by the public to condemn a right of way for this public road, the court is not authorized to review the action of the board of supervisors in determining these questions"-citing Wulzen v. Board of Supervisors, 101 Cal. 15, 35 Pac. 353, 40 Am. St. Rep. 17; County of Sisikiyou v. Gamlich, 110 Cal. 94, 42 Pac. 468; Lewis on Em. Domain, §§ 238, 239. See, also, Pool v. Simmons, 134 Cal. 621, 66 Pac. 872. Where, however, the public use is declared by general statute, enumerating the many objects that are thus designated, the courts are not precluded from determining from all the circumstances whether or not in the particular case the purpose is a public use. Lindsay I. Co. v. Mehrtens, 97 Cal. 676, 32 Pac. 802. Consolidated Channel Co. v. C. P. R. R. Co., 51 Cal. 269, was such a case. Plaintiff sought by condemnation to procure certain lands to serve as a site for a bedrock flume to carry the dirt and gravel from its mining claims, and also as a place of deposit for the tailings of its mine. The statute (Code Civ. Proc. § 1238) gave the right of eminent domain in behalf of flumes among other declared public uses. A demurrer to the complaint was sustained. It was contended that the legislative declaration that flumes are public uses is conclusive upon the judicial department of the government. The court said: "Without doubt it is the general rule that, where any doubt exists whether the use to which the property is proposed to be devoted is of a public or private character, it is a matter to be determined by the Legislature, and the courts will not undertake to disturb its judgment in this regard. This question was fully discussed and the doctrine established in the case of S. & V. R. R. Co. v. City of Stockton, 41 Cal. 147. But in the same case an exception to the general rule is recognized. It is said: 'A case might, indeed, be presented in which it might appear, beyond the possibility of question, that a tax had been imposed, or the property of a citizen had been taken for a use or purpose in no sense public;' or, in the language of Chancellor Walworth (5 Paine, 159), 'where there was no foundation for a pretense that the public was to be benefited thereby'; and in such case it would be our duty to interfere and offer a relief." In discussing the general rule it was said in County of San Mateo v. Coburn, supra: "It is not to be held, however, that the mere declaration by the Legislature that the object for which private property may be taken is a public use will preclude the owner from contesting the right to deprive him of his property. If it is sought to condemn the property for a use which is evidently private, or to accomplish some purpose which is not of a public character,

it can be shown by extrinsic evidence that the end sought to be accomplished is not of a public character, but is solely for private purposes, the condemnation will be denied as being in excess of the legislative power" -citing matter of Niagara Falls, etc., Ry. Co., 108 N. Y. 375, 15 N. E. 429. While it is true that, when the uses are in fact public, the necessity or expediency of taking private property for such uses, the extent to which the right may be delegated, and the instrumentalities to be used, are questions belonging to the political and legislative branches of the government, nevertheless the question whether the uses are in fact public, justifying the taking in invitum of private property therefor, is a judicial question to be determined by the courts. Lewis, Eminent Domain, § 158. Our statute would seem to set the question at rest. Section 1241, Code Civ. Proc., declares that: "Before property can be taken it must appear: (1) That the use to which it is to be applied is a use authorized by law; (2) that the taking is necessary to such use." As the necessity for the taking of the particular property must be made to appear by proof, at least prima facie, the burden is upon the plaintiff to show "that the taking is necessary to such use." Lewis, Em. Domain, § 426. It was said in Lindsay I. Co. v. Mehrtens, supra: "Whoever, under the claim of an agency of the state, would deprive the owner of any of his property by virtue of the exercise of eminent domain, must show, not only that the use for which he seeks to appropriate it is a public use, but also that the Legislature has authorized the taking of property for that particular use, and in the mode in which he is seeking to appropriate it." Unquestionably the owner of the land sought to be condemned may show that the use and its purpose are private, and not public. The existence of the corporation plaintiff proves no more than would the existence of a natural person seeking to condemn under authority of the statute. 2. It was said in County of Madera v. Raymond Granite Co., 139 Cal. 128, 72 Pac. 915, approving the doctrine laid down in Sherman v. Buick, 32 Cal. 253, 91 Am. Dec. 577: "Whether a way be public or private does not depend on the number of people who use it, but upon the fact that every one may lawfully use it who has occasion." Mr. Lewis states the rule as follows: "It is not necessary that the entire community, or any considerable portion of it, should directly participate in the benefits to be derived from the property taken." Lewis, Em. Dom. § 161. The public use required need not be of the whole state or any considerable portion of it, but the use and benefit must be in common, not to particular individuals. Every public use is in more or less degree local

and benefits a particular section more than others. This is true of railroads, as well as of ordinary highways. The cases are numerous sustaining this rule. See notes to Lewis, Em. Dom., supra. See, also, Lindsay I. Co. v. Mehrtens, supra.

3. Neither the length of the road nor the fact that it is a branch or spur bears any necessary relation to the question of public use or of the public interest to be subserved by it, except possibly as a circumstance bearing upon the alleged fact that the road is solely for the private use of plaintiff. Contra Costa Railroad v. Moss, supra. Short roads as connecting links between independent railroad systems, or as branches and feeders to established systems, are often necessary and fall within the general rules governing condemnation quite as completely as main lines of road. It is the public purpose that is to govern, and not the length of the road, whether it is a road connecting two established roads or a branch of an established road, or a branch connecting with another branch road. Appellant cites section 468 of the Civil Code and claims among its errors of law that the articles of incorporation of plaintiff were inadmissible because the above section provides that commercial railroads shall be at least five miles long, and in this case it was impossible to comply, as the road is less than one mile in length. This section requires every railroad corporation, every year after it has begun construction of its road, "to complete and put in full operation at least five miles of its road, until the same is fully completed," failing in which "the right to extend its road beyond the point then completed is forfeited." This section is not to be construed as limiting the right to construct a road to one not less than five miles in length. The most that could be claimed for the section is that, when the road is five miles long or more, the corporation must comply with the statute.

4. The meaning of that part of subdivision 3, § 1241, Code Civ. Proc., is called in question, reading: "If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use." The point has reference to the McLennan road over which plaintiff seeks a right of way, and it is contended by appellant that only by direct and specific legislative enactment and authority can property be taken which is already applied to a public use; that the question whether or not the intended use is "a more necessary public use" is a question for the Legislature to decide, and not the courts. We are referred to a discussion of the question by Mr. Lewis, in his work on Eminent Domain (sections 262-276). Conceding the general doctrine to be as illustrated by Mr. Lewis, the Legislature of this state bas specifically and directly authorized railroad corporations to "construct their roads across, along or upon any avenue or highway; but the cor

poration shall restore the road * highway thus intersected, to its former state of usefulness as near as may be, or so that the railroad shall not unnecessarily impair its usefulness or injure its franchise." Arcata v. Arcata & M. R. R. R. Co., 92 Cal. 639, 28 Pac. 676; S. P. R. R. Co. v. Ferris, 93 Cal. 263, 28 Pac. 828, 16 L. R. A. 510. See, also, Montgomery v. Railway Company, 104 Cal. 186, 37 Pac. 786, 25 L. R. A. 654, 43 Am. St. Rep. 89. Mr. Lewis (section 270) cites Springfield v. Conn. River R. R. Co., 4 Cush. (Mass.) 63, to the effect that authority to construct a railroad between certain termini does not authorize the appropriation of a highway longitudinally. adds, however, that "the Legislature may of course authorize the condemnation of additional easements in public highways, as for railroads, electric lines," etc. This latter au

thority is clearly given by our statute.

He

5. Some question arose in the case as to the right of the defendant company to inquire into the good faith of the promoters of plaintiff company in forming the corporation and to show that it was in fact not a bona fide corporation. So far as we can discover defendant company was permitted to introduce such evidence as it had which bore upon the question, and, if it was error to admit it, appellant cannot complain. Possibly it was admitted upon the theory that it bore somewhat upon the question that the use, as claimed by appellant, was in fact private. Appellant states distinctly, "we do not attack Madera Railroad Company's articles as a corporation," and we may accept this declaration as conclusive. We do not think, however, that the good faith of the corporators in forming the corporation can be called in question collaterally in this proceeding so as to in any wise affect the validity of the corporate existence. The dissolution of the corporation or the forfeiture of its franchise can only be accomplished by quo warranto proceedings, as was the case of People v. Pittsburgh R. R. Co., 53 Cal. 694; or under the provisions of Code Civ. Proc. § 803 et seq. (People v. Dashaway Association, 84 Cal. 114, 24 Pac. 277, 12 L. R. A. 117). For a discussion of the right to collaterally attack the validity of the corporation charter, see Kansas Railway Company v. Coal Co., 161 Mo. 288, 61 S. W. 684, 51 L. R. A. 936, 84 Am. St. Rep. 717. Whether or not the franchise will be taken away or the exercise of corporate acts be enjoined, upon a given state of facts, are questions not necessarily determinative of the question here, namely, whether or not the corporation is in fact seeking only by means of the right of eminent domain to enjoy the property sought to be taken, purely as a private use, and not in the interest of the public. The corporation may have a valid existence and may successfully resist all efforts to revoke its franchise, and yet the court may inquire whether the particular use involved in the condemnation is public or private. If the use

be private, with which the public have no concern, and in which it has no interest, condemnation will be refused, regardless of the general right of the corporation to condemn by virtue of its corporate existence.

In view of the foregoing principles it remains to notice the facts developed by the evidence, and certain questions connected therewith and certain assignments of error. It appears that, by ordinance 74 of the supervisors of Madera county, the Madera Granite Company was authorized to build a railroad along the McLennan highway, and that company commenced the work of construction, but was enjoined from its further prosecution, or using this highway for railroad purposes. Subsequently, to wit, June 6, 1903, plaintiff company was duly incorporated, and thereafter, it petitioned the board of supervisors for a franchise to construct and operate a railroad along the McLennan highway, which was accompanied by a waiver on the part of the Madera Granite Company of its franchise granted by ordinance 74, and on July 11, 1903, ordinance 86 was passed by said board of supervisors, granting the petition. It is now claimed that the Madera Granite Company did not convey to plaintiff its right of way granted it by ordinance 74 or any of its railroad property, and that the property under section 494, Civ. Code, still belongs to the Granite Company, and hence plaintiff has no standing in court. Section 494, Civ. Code, relates exclusively to sales and transfers of property of one railroad company to another railroad company. Madera Granite Company was not organized as a railroad corporation, and had no authority by its charter to engage in railroad building, and probably for that reason the court enjoined its attempt to exercise the powers of a railroad corporation. However this may be, the section has no application to the facts, and hence we cannot see what cause defendant has for complaining that plaintiff is violating, if it is doing so, the private rights of the Granite Company.

The

Appellant contended at the trial for the right to introduce evidence showing that plaintiff, in constructing its road along McLennan highway, practically destroyed its usefulness to defendant company as an abutting owner and user of the highway. The trial court admitted the evidence offered in support of this defense, and in rebuttal thereof findings were made upon the issue favorable to plaintiff. The evidence was conflicting, with sufficient to support the findings.

There was considerable evidence tending to the point that the main object in building the road was to enable the owners of the Madera Granite Company to market its product. Circumstances may arise where it becomes of public benefit for branch railroads to be built primarily to reach some important industry about to be inaugurated or that is struggling along under difficulties for want of transportation facilities. The fact that the advant

age of such road inures to a particular individual or a class of individuals will not render the use any the less public. And the fact that the stockholders of the Madera Granite Company were also stockholders of plaintiff company does not prove that the contemplated use is a private use. Lindsay I. Co. v. Mehrtens, supra. The doctrine, as we believe it to be, is well stated in Ulmer v. Lime Rock Railroad Company, 98 Me. 581, 57 Atl. 1001, 66 L. R. A. 387. That was a condemnation suit to condemn a right of way over certain land for a branch road to a lime quarry. The court said: "The mere fact that the primary purpose of such a branch is to accommodate a particular private business enterprise is by no means a controlling test. The character of the use, whether public or private, is determined by the extent of the right of the public to its use, and not to the extent to which that right is or may be exercised. If it is a public way in fact, it is not material that but few persons enjoy it. When such a branch track is first constructed, and the right of way necessary therefor is taken, it may in fact be used only for the business of the plant to which it is constructed, because at that time no other business enterprise may exist in that vicinity to furnish freight for transportation; but in the future other enterprises may spring up, either upon the line or the extension thereof, so that a branch track which in the first instance is primarily constructed for the accommodation of one may become of equal accommodation, benefit, and use to others. The tests decisive of this question as to whether a branch track of this character is to be constructed and operated for public or private purposes, deducible from the great weight of authority upon the question in this country, are these: If the track is to be open to the public, to be used upon equal terms by all who may at any time have occasion to use it, so that all persons who have occasion to do so can demand that they be served without discrimination, not merely by permission, but as of right, and if the track is subject to governmental control, under general laws as are the main lines of a railroad, then the use is a public one, and the Legislature may grant the power to exercise the right of eminent domain to a corporation which is to construct and operate such track; and, if the purpose of the railroad corporation in building any particular branch track is to operate the same in conformity with these requirements, then the power granted by the Legislature may be exercised in that particular case. This is in accordance with the almost unbroken line of decisions of the appellate courts of the various states of this country, a brief quotation from a few of which may be advantageous." Citing many cases.

Our statute does not define what is meant by "steam railroads," nor does it make any distinction between main lines and branches. A corporation may be formed to build a par