Leyba v. Armijo

OPINION OP THE COURT. McMILLAN, J. 1 Certiorari was the proper writ to bring up for review all the proceedings before the justice of the peace in this matter. It not only brought up the petition, upon which the proceedings were founded, but it also brought up the report of the commissioners of appraisal, which is a part of the proceedings had herein in the justice’s court. Farmington Co. v. Commrs., 112 Mass. 206; Miller v. School Trustees, 88 Ill. 26; Ex parte Hayward, 10 Pick. (Mass.) 358; Richardson v. Smith, 59 N. H. 517. 2 '^Condemnation' proceedings are purely statutory. They are justified only on the theory that the property sought to be taken is for a public use. The proceeding being in derogation of the common law, every provision of the statute must be complied with, and unless they are strictly complied with, the court acquires no jurisdiction whatever. Property can be acquired for the public use only by due process of law, which is a strict compliance with the provisions authorizing its condemnation. Colo. F. & I. Co. v. Four Mile Ry. Co., 66 Pac. 902. The statute under which these proceedings were taken, Compiled Laws 1897, is as follows: “Section 25. When any public ditch or part thereof shall be destroyed by rain or otherwise, and it shall be absolutely impossible to construct it where it usually ran before it was destroyed, the mayordomo of such ditch, with the consent of a majority of the common laborers thereof, may cut through the lands of any person, by first obtaining the consent of the owner and by offering to pay such compensation as may be agreed upon between the owner and the persons interested in said ditch.” “Section 26. If the owner who shall be solicited to permit his lands to' be ditched for the purpose of opening the new ditch, in the case mentioned in the preceding section, shall improperly refuse or decline to accept the compensation offered by the ditch owner, or demand exorbitant compensation, the mayordomo shall lay the case before the justice of the peace of the precinct in which the ditch is situate, who shall appoint three experts of known integrity to fix a just compensation to be paid to the one solicited to permit his lands to be ditched through in the case above mentioned.” It must therefore appear by the petition; first, that the ditch in question is a public ditch; second, that a part thereof has been destroyed; third, that it is absolutely impossible to construct it where it usually ran; fourth, that a majority of the common laborers have consented to the application; fifth, that it is necessary to cut through other lands; sixth, that the owner of such land improperly refused to accept the compensation offered, or demands exorbitant compensation. /"All these facts must appear in the petition presented, before the justice can acquire jurisdiction to appoint the experts/ Not one of these facts appears in the petition presented in this proceeding to the justice of the peace. Neither does it appear that the owner of the land, the appellant herein, had any notice of the application. In Aldridge v. School District No. 16, 65 Pac. 96, the court says: “We think that if the section should be understood •to deny the right of the landowner in such condemnation proceedings to notice that such proceedings were pending, the legislative enactment would be to the extent un•constitutional and void. But a better interpretation of -the statute is that it was not the intention of the Legislature that the proceedings under the statute should bej taken without notice to the landowner.” It hasouniformly been held that the words “due process of law” mean that the common and statute law existing at the time of the adoption of the constitution, and we do not think it can be sustained that the property of a private citizen may be taken and appropriated in condemnation proceedings under the right of eminent •domain, without notice, which was the uniform accompaniment of any proceeding under the common law or •statute law at the time of the appropriation of the private property ;/we think that in any proceeding in which the public authorities undertake to appropriate the land of another in an exjparte way, and without notice, the proceeding must be held to be void,c The right to condemn private land for ditch purposes before a justice of the peace is given only where there has been an absolute destruction of the ditch, and it is impossible to reconstruct it where it formerly ran. In this proceeding, no such condition is shown to have existed. All that appears is that the old ditch was difficult to maintain were it was, and that adjoining property-owners had suffered damage therefrom. The statute only gives the right to institute proceedings when it appears that there has been an inability to agree with the owner of the land upon the compensation to be paid therefor. There must be an effort to agree upon a reasonable price and a failure of such negotiations, and this is a jurisdictional fact which must appear. Although the statute requires, in section 27, that the experts appointed as appraisers,, before appraising the lands, shall ascertain whether or not the ditch for which a new channel is sought is entirely destroyed, and that the exorbitant cost and labor required to rebuild it renders its reconstruction absolutely impossible; and if in their opinion the injury done to the ditch may be repaired, they will so report to the justice, and in that case the land sought to be condemned shall not be ditched —it seems unnecessary to consider this fact, or yet the report made by the commissioners, for the reason that the justice acquired no jurisdiction and has no authority whatever, under the statute, to appoint the commissioners of appraisal herein, and the proceedings are therefore void. The judgment of tbe district court affirming the action of the justice of the peace should be reversed. The case is remanded to the district court, with directions to reverse and set aside the proceedings of the justice of the peace had herein, and it is so ordered. Mills, C. J., Baker, McFie and Parker, JJ., concur.