
    [No. 4853.]
    SAN MATEO WATERWORKS v. J. R. SHARPSTEIN.
    Taking Private Pbopertz vor a Public Use. — An order permitting a plaintiff, in proceedings to condemn land for a public use, to enter into possession of the same during the pendency of the proceedings and until their conclusion, is a taking of private property for a public use within the meaning of the Constitution, and cannot be made.
    Application to the Supreme Court for a writ of review.
    The defendant, Sharpstein, was judge of the Twelfth Judicial District, City and County of San Francisco. The Spring Valley Waterworks was a corporation, engaged in supplying pure water to the inhabitants of said city. Its sources of supply of water were the streams flowing in the mountains, in the county of San Mateo, south of said city. The defendant was also a corporation, supplying water to the inhabitants of the town of San Mateo, in San Mateo County, and its source for the supply of water was also in said mountains. The plaintiff commenced proceedings in said court to condemn a tract of land on the banks of the Laguna Raymundo, containing about twenty-eight acres, on the 18th day of May, 1875, and in its complaint alleged that it was necessary for its use in the prosecution of its enterprise. After summons had been served on the defendant, the court made an ex parte order, upon the application of the plaintiff, permitting the plaintiff to take possession of and use the land during the pendency of the proceedings, upon executing a bond in the sum of ten thousand dollars, for the payment to the defendant of the compensation to be ascertained, and also for the payment of damage if the property was not finally taken. This was an application to the Supreme Court to review the order as in excess of jurisdiction.
    
      W. H. L. Barnes, for the Petitioner.
    
      Charles N. Fox, for the Defendant.
   By the Court:

The taking in this case amounts to a taking of private property for public use in the sense in which that phrase is used in the Constitution, and can only be effected upon the conditions prescribed in the Constitution—that is, upon just compensation being simultaneously made.

Order annulled.  