Vilhac v. Stockton & Ione R.R.

By the Court : The undertaking upon which the action was brought was given in proceedings instituted by the railroad company for the condemnation of certain tracts of land, one of which was owned by the plaintiff, and was intended as the “ security ” provided for in sec. 1254 of the Code of Civil Procedure, upon being authorized by the Court to have the possession and use of the lands during the pendency of the condemnation proceedings, the parties who- executed the undertaking thereby promising that the railroad company should pay the compensation which might be awarded by reason of the taking of the lands, and all damages which might be sustained by the owner of the lands if they should not be finally taken by the railroad company for public use. It is alleged in the complaint that, upon the filing of the report of the referees in the condemnation proceedings, the Court entered judgment in favor of this plaintiff against the railroad company for nine hundred dollars and fifty cents, for the value of the land taken, and the damages sustained by reason of the taking of the land, and for seven hundred dollars for [212] the cost of building fences along the line of the railroad. The breach alleged is, that no part of the judgment has been paid. As a statutory obligation, the undertaking is void. It was held in San Mateo Water Works v. Sharpstein, 50 Cal. 284, and Sanborn v. Belden, 51 Cal. 266, that an undertaking of this character did not constitute a “ just compensation ” in the sense of the eighth section of the first article of the Constitution, for the taking of the property upon the preliminary order of the Court. This, then, being the settled doctrine of the Court, it must necessarily be held that the undertaking will not constitute just compensation upon the final taking of the property. Regarding the undertaking as an obligation at common law, no recovery can be had upon it, as the case now statids, for the just compensation to which the plaintiff would be entitled, upon the taking of the property, because it is not alleged that he accepted the undertaking in lieu of the payment to which he is entitled, upon the final taking of the property; nor is it alleged that the property was finally taken, nor is'the just compensation to which he is entitled for the preliminary taking averred. Mor can a recovery be had for the damages sustained by the preliminary taking, because such damages are not averred, and for the-further reason that the only damages mentioned in the undertaking are such as may be sustained, “ if, for any cause, the said described property, or any of it, shall not be finally taken ” by the railroad company; and it is not averred that the property was not so finally taken, nor that by reason thereof the plaintiff has sustained any damage. Judgment and order reversed, and cause remanded for a new trial. ■