
    [No. 12083.
    In Bank.
    June 10, 1890.]
    ALBION RIVER RAILROAD COMPANY, Respondent, v. WILLIAM HESSER, Appellant.
    Eminent Domain — Right of Way for. Railroad—Just Compensation — Improvements by Trespasser — Bona Fide Intent to Condemn.— Where a railroad company, prior to the commencement of proceedings to condemn a right of way for its road, but with the bona fide intent to commence such proceedings, enters upon land and erects structures thereon for the use of its road, it is not required, in making just compensation for the right of way in the subsequent condemnation proceedings, to pay the land-owner for the structures so erected.
    Appeal from a judgment of the Superior Court of Monterey County, and from an order denying a new trial.
    The facts are stated in the opinion.
    
      J. M. Mannon, Thomas B. Bond, and C. C. Hamilton, for Appellant.
    
      T. L. Carothers, and Carothers & Wheeler, for Respondent.
   Foote, C.

This action was instituted for the purpose of condemning to the public use a right of way for the plaintiff’s railway track over a portion of the defendant’s land.

Judgment of condemnation followed, as prayed for, and the damages were assessed against the plaintiff in the sum of $175, as a just compensation for the property sought to be condemned, and as damages consequent to such condemnation.

The defendant appeals from the judgment, and order denying a new trial. The contention of the appellant is, that the court erred in failing and refusing to make and give judgment in his behalf for eight thousand five hundred dollars more than was awarded him. The ground upon which this claim is advanced is, that the railroad corporation entered upon the land of the appellant before any condemnation proceedings had been commenced, and erected thereon a bridge and railroad track, which had become permanently attached and affixed to the soil, which was of the value of eight thousand five hundred dollars. And such being the fact, the defendant became the owner of these fixtures or permanent improvements upon his land, placed there by plaintiff as trespassers, and, as a consequence, was entitled to have their value allowed to him as a part of his just compensation.

The evidence shows that the corporation, at the time of its entry upon the land and the building of the bridge and track thereon, did not know positively who owned the land, nor did the defendant know that it was his land that was being thus intruded upon until he got the field-notes of it from San Francisco.

While the entry of the plaintiff may have been, technically, a trespass, it was not the act of a mere tort-feasor. It is therefore to be determined whether the bridge and track, placed upon the land, under such circumstances, with the evident intention, in good faith, to put in operation the constitutional right to condemn, for the public use, the right of way over the land, is such an act as operates as a dedication, in law, of the materials or structures of the railroad placed upon the land to the owner of the land, so as to entitle him to include them in the assessment of his damages as a just compensation for the condemnation of the right of way over his land.

In the case of Cal. P. R. R. Co. v. Armstrong, 46 Cal. 85-90, the appellate court said: “ The argument on behalf of defendant on the first point is, that the plaintiffs, in constructing the railroad track, were trespassers, and that the track, being attached to the soil, became a part of the realty, and belonged to the owner of the land. Hence he claims that its value ought to be included in the estimate of damages, in like manner as though the defendant himself had built the road. But this proposition cannot be maintained. Neither the constitution nor the statute contemplates that a person whose land is taken in the exercise of the right of eminent domain shall be entitled to anything beyond a ‘just compensation.’ He is to be paid the damage he actually suffers, and nothing more. But to hold that, in addition to the fair value of the land taken, and such other damages as he may suffer by severing it from the remainder of his tract, he shall also recover the value of a railroad track, in the construction of which he never expended a dollar, and which was built by the plaintiffs at their own expense, would be to defeat the obvious intent of the statute by an overtechnical construction of it.”

Again, the supreme court of Pennsylvania, in the case of Justice v. N. V. R. R. Co., 87 Pa. St. 28-33, has said: “ The very intent of an appropriation of land is to place upon it and own and use the structures necessary to carry out the charter purpose. Hence no dedication of the material can be inferred in such a case. In this we perceive how differently the common law itself must view the application of its own rules. The great merit of the common law, so often commended by jurists, is its plasticity as a system of principles, and not merely of rigid rules, which can be adapted to new conditions in the affairs of men. Modern inventions and discoveries have so far transcended the conditions of former times that to apply the rule as to a mere trespasser, whose entry is a tort pure and simple, to the case of one authorized to enter for a great public purpose, merely because of an irregularity in the manner of proceeding, would be as vain as to attempt to dress a full-grown man in the garb of his childhood. This is not the case of a mere trespass by one having no authority to enter, but of one representing the state herself, clothed with the power of eminent domain, having a right to enter and to place these materials on the land taken for a public use, — materials essential to the very purpose which the state has declared in the grant of the charter. It is true, the entry was a trespass by reason of the omission to do an act required for the security of the citizen, to wit, to make compensation or give security for it. For this injury the citizen is entitled to redress. But his redress cannot extend beyond his injury. It cannot extend to taking the personal chattels of the railroad company. They are not his, and cannot increase his remedy. The injury was to what the land-holder had himself, not to what he had not. Then why should the materials laid down for the benefit of the public be treated as dedicated to him ? In the case of a common trespasser, the owner of the land may take and keep his structures, nolens volens; but not so in this case, for though the original entry was a trespass, it is well settled that the company can proceed in due course of law to appropriate the land, and consequently to reclaim and avail itself of the structures laid thereon. (Harrisburg v. Crangle, 3 Watts & S. 460; McClinton v. Railroad Co., 16 P. F. Smith, 409; Railroad Co. v. Burson, 11 P. F. Smith, 379.)”

In Illinois it is said, in the case of Chicago etc. R. R. Co. v. Goodwin, 111 Ill. 202, 53 Am. Rep. 622, 623: “Even if the entry had been without license or permission of any one authorized to grant the same, so that it was a trespass at the time, the law would not require the railroad company, in seeking a condemnation of the lands so entered upon for a right of way, to pay the owner of the land for structures placed upon it at its own expense, with the view of subsequently acquiring the right of way.” (Citing numerous cases.)

In a case entitled Cohen v. St. L. F. S. & W. R. R. Co., 34 Kan. 158-167, 55 Am. Rep. 242, it is said: “It has even been held that where a railroad company enters upon land as a technical trespasser, and afterward procures the land for its right of way by condemnation proceedings, it is not compelled to pay for the improvements which it itself made upon the land while it was technically a trespasser, and before it legally procured its right of way.” (Citing many cases.)

In Oregon the matter has been determined in like manner in the case of Oregon R’y & Nav. Co. v. Mosier, 14 Or. 519, where it was said: “The object of the proceeding is to award just compensation to the owner of the land. The improvements made by the corporation, and for the use of the road, and necessary for its successful operation, constitute no part of the damage or value of the land. The just compensation is for the injury which he may sustain for the taking of the land. ‘ When this is afforded the purposes of right and the constitution are satisfied. It is not intended that the compensation shall extend beyond the loss and injury, including that which the land-owner had not when the property was taken, but which is an incident of the appropriation, and essential to the uses for which the law confers the right of taking the property.’ (Jones v. Railway Co., supra; Railroad Co. v. Booram, 28 N. J. Eq. 450.)”

The views thus expressed in the authorities cited are well sustained by Brickell, J., in the Alabama case, supra.

It is true that the appellant contends that the appellate court of California, in the ease of United States v. Land in Monterey County, 47 Cal. 515-517, has reversed the case in 46 Cal., cited heretofore, but an examination of the cases does not bear out the assertion. For the court in the later opinion says: “ The law did not authorize the United States to take possession of these lands manu forti, and their agents, in entering upon them and ejecting the defendants, were mere tort-feasors. The case is in this important respect wholly unlike that of California Pacific Railroad Company v. Armstrong, 46 Cal. 85.”

The Armstrong case was one where the land was entered upon and the structures erected pending condemnation proceedings, but they were dismissed. These condemnation proceedings were again initiated, and the defendant’s claim for the Value of the corporation’s improvements, made before the institution of the last proceedings, was disallowed, the court putting its ruling upon the ground that the structures were erected while the corporation was in possession. The first condemnation proceedings, then pending, were afterward dismissed.

Although not altogether clearly expressed, we gather that the court thought the circumstances in the one case evinced the disposition in good faith to condemn and pay a just compensation, and the other an entry by the strong hand with no such intention.

If we are wrong in this conclusion as to the distinction drawn, and it is as contended, that the two cases are irreconcilable, then we think, both upon reason and authority, the case in 47 Cal. should be declared overruled and the case in 46 Cal. approved.

Under the facts in this case, we do not think the rule of just compensation for condemned property would be subserved by holding that the defendant should make the plaintiff pay eight thousand five hundred dollars, which the plaintiff expended in good faith to establish a public use, and when the defendant expended not one dollar, and at the time of the construction of the track and bridges did not know that they were being built on his land. To do this would be to pay the defendant for that which he never had, and which the plaintiff, in putting it upon the appellant’s land, had no intention, as a tort-feasor, to place there. All the injury the defendr ant suffered can be paid for, without giving him a large sum of money for injury he never suffered.

We therefore advise that the judgment and order be affirmed.

Belcher, C. C., and Vanclief, C., concurred.

The Court. — For the reasons given in the foregoing opinion, the judgment and order are affirmed.  