TEMPLE, J.
The plaintiff, a natural person, commenced this action to condemn a strip of land through premises owned by defendant for a right of way for a railroad. It is averred in the complaint that the board of supervisors of Los Angeles County had granted to plaintiff a franchise to construct and maintain an electric railway in the county of Los Angeles,
over and along a route shown upon a map annexed to the complaint. The line described nearly bisects the land of defendant, which is a rectangular tract containing one hundred and twenty acres. The strip sought to be condemned for the right of way is thirty-five feet wide.
The matter was submitted to a jury, which, framing its verdict according to the statute, found that the land to be taken was of the value of $429 on the twenty-fifth day of November, 1899, when the proceeding was commenced; that the land not taken would be damaged to the extent of $2,000, and that such land would be benefited by the construction of' the proposed road to the extent of $500; that fencing the right of way would cost $233.64.
A motion for a new trial was denied, and from such order and from the judgment this appeal is taken.
There are many assignments of error, but the two principal points, as I think, are these: 1. The court erred in not allowing defendant to prove that the plaintiff was not the proper party to commence this proceeding; that he was not a person ' in charge of a public use; and 2. In allowing plaintiff to set off benefits against the damage to land not taken.
The defendant offered evidence tending to show that plaintiff was not engaged in building a railway, and did not contemplate doing so; that he was an employee of the Los Angeles Pacific Railway Company, a corporation, and was endeavoring to secure a right of way for that corporation and not for himself; that he had contracted to convey, or to cause to be conveyed, to that corporation such rights as he should obtain, and that property-owners along the proposed line, from whom rights of way had been obtained, had, at his instance, conveyed such rights to that company, and that all grading done or road constructed had been at the expense of the Los Angeles Pacific Railway Company, to which plaintiff had agreed to convey the franchise granted to him. Bach particular item of the evidence was separately offered, objected to, and objection sustained, and the ruling excepted to.
The offer was in fact to show that plaintiff was seeking to condemn the right of way solely for the purpose of transferring the same at once to the Los Angeles Pacific Railway, which was engaged in building the railway, and which would own and operate it.
The evidence was relevant, material, and competent. It was offered for the purpose of showing that the real party in interest was a corporation, with a view of enhancing the damage, as it was claimed that if the corporation was the real party in interest benefits could not be set off against the damage to land not taken, while perhaps if a natural person was in charge of the use and was seeking to acquire such right of way, such benefits might be allowed as a credit. But the point cuts much deeper than that. If the court were convinced that the facts were as contended, the plaintiff should not be allowed to maintain the proceeding at all. It is admitted on all sides, and necessarily, that the proceeding can be maintained only by one who is in charge of a public use and who intends to perform the public service. And further, if the proceedings may be in the name of an agent or other representative, such agency should be stated. One who seeks a right of way to sell merely is not in charge of a public use.
But is there a different rule for estimating the damage when a natural person is in charge of a public use, and is seeking to take property for that use, and when a private corporation is the plaintiff in such a proceeding
1
In Department it was assumed that section 14 of article I of our state constitution discriminates in favor of natural persons and municipal corporations and against private corporations seeking to condemn land for a right of way, and it was held that the constitutional provision was void because in conflict with the fourteenth amendment to the constitution of the United States, in which it is ordained that no state shall “deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.” On reflection, I am satisfied that the section in question neither does nor directs the doing of any of those acts which are forbidden in the fourteenth amendment. It certainly does not authorize the taking of property without due process of law. On the contrary, it provides very ample protection in that regard. Neither does it deprive any person or property of the equal protection of the law. The section reads as follows: “Sec. 14. Private property ska'll not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner, and no right of way shall be appropriated to
the use of any corporation other than municipal until full compensation therefor be first made in money or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in a court of record, as shall be prescribed by law.”
It is a mere limitation upon the power of the legislature in regard to eminent domain. No private railroad corporation can be permitted to appropriate a right of way over private property until compensation is first made.in money, without deduction for estimated benefits from the improvement. It does not authorize any other persons—natural or artificial— to take property on more favorable terms. It is purely negative in its character. If the legislature had prescribed a similar rule for all condemnation proceedings, no one would have thought that this section secured special privileges to or specially burdened any class of persons. A constitutional limitation in itself valid and not in conflict with the federal constitution cannot be made invalid by any act of the legislature. This will, of course, be conceded.
The statute in terms prescribes a uniform rule for all cases. (Code Civ. Proc., sec. 1248.) It authorizes a deduction for benefits in all cases. It is made to have an unequal operation, because one provision cannot be enforced in cases where a corporation other than municipal is endeavoring to condemn land for a right of way. The difference between the constitutional provision and the code was commented upon in
Moran
v.
Ross,
79 Cal. 549, and it was there held that the effect of both was to impose a greater burden upon corporations other than municipal than was imposed upon natural persons. Conceding the validity both of the statute and of the constitutional provision, and that a natural person could be in possession of a public use which would authorize him to condemn land for a right of way, the conclusion seems logical.
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TEMPLE, J.
The plaintiff, a natural person, commenced this action to condemn a strip of land through premises owned by defendant for a right of way for a railroad. It is averred in the complaint that the board of supervisors of Los Angeles County had granted to plaintiff a franchise to construct and maintain an electric railway in the county of Los Angeles,
over and along a route shown upon a map annexed to the complaint. The line described nearly bisects the land of defendant, which is a rectangular tract containing one hundred and twenty acres. The strip sought to be condemned for the right of way is thirty-five feet wide.
The matter was submitted to a jury, which, framing its verdict according to the statute, found that the land to be taken was of the value of $429 on the twenty-fifth day of November, 1899, when the proceeding was commenced; that the land not taken would be damaged to the extent of $2,000, and that such land would be benefited by the construction of' the proposed road to the extent of $500; that fencing the right of way would cost $233.64.
A motion for a new trial was denied, and from such order and from the judgment this appeal is taken.
There are many assignments of error, but the two principal points, as I think, are these: 1. The court erred in not allowing defendant to prove that the plaintiff was not the proper party to commence this proceeding; that he was not a person ' in charge of a public use; and 2. In allowing plaintiff to set off benefits against the damage to land not taken.
The defendant offered evidence tending to show that plaintiff was not engaged in building a railway, and did not contemplate doing so; that he was an employee of the Los Angeles Pacific Railway Company, a corporation, and was endeavoring to secure a right of way for that corporation and not for himself; that he had contracted to convey, or to cause to be conveyed, to that corporation such rights as he should obtain, and that property-owners along the proposed line, from whom rights of way had been obtained, had, at his instance, conveyed such rights to that company, and that all grading done or road constructed had been at the expense of the Los Angeles Pacific Railway Company, to which plaintiff had agreed to convey the franchise granted to him. Bach particular item of the evidence was separately offered, objected to, and objection sustained, and the ruling excepted to.
The offer was in fact to show that plaintiff was seeking to condemn the right of way solely for the purpose of transferring the same at once to the Los Angeles Pacific Railway, which was engaged in building the railway, and which would own and operate it.
The evidence was relevant, material, and competent. It was offered for the purpose of showing that the real party in interest was a corporation, with a view of enhancing the damage, as it was claimed that if the corporation was the real party in interest benefits could not be set off against the damage to land not taken, while perhaps if a natural person was in charge of the use and was seeking to acquire such right of way, such benefits might be allowed as a credit. But the point cuts much deeper than that. If the court were convinced that the facts were as contended, the plaintiff should not be allowed to maintain the proceeding at all. It is admitted on all sides, and necessarily, that the proceeding can be maintained only by one who is in charge of a public use and who intends to perform the public service. And further, if the proceedings may be in the name of an agent or other representative, such agency should be stated. One who seeks a right of way to sell merely is not in charge of a public use.
But is there a different rule for estimating the damage when a natural person is in charge of a public use, and is seeking to take property for that use, and when a private corporation is the plaintiff in such a proceeding
1
In Department it was assumed that section 14 of article I of our state constitution discriminates in favor of natural persons and municipal corporations and against private corporations seeking to condemn land for a right of way, and it was held that the constitutional provision was void because in conflict with the fourteenth amendment to the constitution of the United States, in which it is ordained that no state shall “deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.” On reflection, I am satisfied that the section in question neither does nor directs the doing of any of those acts which are forbidden in the fourteenth amendment. It certainly does not authorize the taking of property without due process of law. On the contrary, it provides very ample protection in that regard. Neither does it deprive any person or property of the equal protection of the law. The section reads as follows: “Sec. 14. Private property ska'll not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner, and no right of way shall be appropriated to
the use of any corporation other than municipal until full compensation therefor be first made in money or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in a court of record, as shall be prescribed by law.”
It is a mere limitation upon the power of the legislature in regard to eminent domain. No private railroad corporation can be permitted to appropriate a right of way over private property until compensation is first made.in money, without deduction for estimated benefits from the improvement. It does not authorize any other persons—natural or artificial— to take property on more favorable terms. It is purely negative in its character. If the legislature had prescribed a similar rule for all condemnation proceedings, no one would have thought that this section secured special privileges to or specially burdened any class of persons. A constitutional limitation in itself valid and not in conflict with the federal constitution cannot be made invalid by any act of the legislature. This will, of course, be conceded.
The statute in terms prescribes a uniform rule for all cases. (Code Civ. Proc., sec. 1248.) It authorizes a deduction for benefits in all cases. It is made to have an unequal operation, because one provision cannot be enforced in cases where a corporation other than municipal is endeavoring to condemn land for a right of way. The difference between the constitutional provision and the code was commented upon in
Moran
v.
Ross,
79 Cal. 549, and it was there held that the effect of both was to impose a greater burden upon corporations other than municipal than was imposed upon natural persons. Conceding the validity both of the statute and of the constitutional provision, and that a natural person could be in possession of a public use which would authorize him to condemn land for a right of way, the conclusion seems logical. It is now, however, earnestly contended that the statute and the constitution together produce an inequality which is forbidden, and it matters not that the effect is the result of the constitution and of the statute together. In Department the difficulty was solved by declaring the constitutional rule invalid. This solution is, however, I am convinced, inadmissi
ble. The question must be, Can the statute be sustained ? And in considering this point we need not look to the fourteenth amendment. Our state constitution equally prohibits discrimination not justified by intrinsic differences, and requires a uniform operation of general laws. The case has been argued entirely from the standpoint of the person in charge of a public use who is seeking to acquire property by condemnation; but it is equally important to consider the question from the position of the property-owner. Can the legislature provide that he shall receive a smaller sum for the taking of the land when it is taken by a natural person than when it is taken by a corporation for precisely the same use, especially when the natural person may at once transfer his property to the corporation? Or suppose two cases: Land belonging to one person is being taken by a natural person and other land belonging to him by a corporation, the uses and burdens being in all respects similar. Can the law provide that in one case an allowance shall be made for supposed benefits and not in the other? I think it must be answered that the legislature cannot provide for the one case a less favorable rule than the constitution has provided for the other. They are entitled to the equal protection of the law, or, as was said in
Yick Wo
v.
Hopkins,
118 U. S. 356, “the protection of equal laws.”
Section 14 prescribes that in all cases of taking property for public use just compensation shall be first made. Under this clause a rule could not be sustained which would not fully 1 compensate the property-owner, but the legislature is not limited to a rule which will only compensate the property-owner, and if a law were enacted which would be valid there would be no constitutional difficulty. It must always be for the judiciary to determine whether full compensation is provided. It is necessary, also, that the compensation provided must be in money. (2 Lewis on Eminent Domain, sec. 460, and authorities cited.) Of course, this must be so. The constitutional limitation would be of little value if the legislature could authorize payment in any commodity or conjectured advantage it might choose.
Benefits are said to be of two kinds, general and special. 'General benefits consist in an increase in the value of land common to the community generally, from advantages which
will accrue to the community from the improvement. (Lewis on Eminent Domain, sec. 471.) They are conjectural and incapable of estimation. They may never be realized, and in such case the property-owner has not been compensated save by the sanguine promise of the promoter.
Special benefits are such as result from the mere construction of the improvement, and are peculiar to the land in question. The trend of decision is very decidedly to the conclusion that general benefits shall not be allowed as a set-off to damages, even when no statute prescribes a contrary rule. (Lewis on Eminent Domain, sec. 471, notes 44 and 45.) Such appears to be the conclusion of Judge Cooley (Const. Lim. 567-580).
The question has been very much discussed, and now in a majority of states the rule is against the credit of such benefits, established variously by constitution, by statute, or by-judicial decision.
I am satisfied that in a proceeding to condemn a right of way, at least by a corporation other than municipal or by a natural person, such benefits cannot be set off against damages to lands not taken under our present constitution. Prior to the adoption of the present constitution the supreme court had decided, in a case where it was found that there were no special benefits, but only general benefits, as I have defined them, that such benefits could be set off against damages, and that by this rule the owner was fully compensated.
(California Pac. R. R. Co.
v. Armstrong, 46 Cal. 85.) By section 14, involved here, I believe the people intended to overrule this case and other like decisions, so far .as applicable to private' railroad corporations. But I think it must be assumed that the intention was to provide in the constitution a rule which would justly compensate the land-owner, and that there was no intention of discriminating unjustly against any; and, in my opinion, the rule of the constitution is the just and proper rule, and furthermore, if the allowance of a credit for such benefits were not expressly prohibited they are impliedly prohibited by other clauses of the same section.
In the first place, such benefits are uncertain, incapable of estimation, and future. Compensation must be made in money and in advance. The property-owner, therefore, cannot be compelled to receive his compensation in such vague specula
tions as to future advantages, in which a jury may he induced to indulge.
And then for the reasons usually given for the disallowance of credit for such benefits by the courts when they are not governed by any constitutional or statutory rule; some of the reasons are as follows:—
The chance that land will increase in value as population increases and new facilities for transportation and new markets are created is an element of value quite generally taken into consideration in the purchase of land in estimating its present market value. This chance for gain is the property of the land-owner. If a part of his property is taken for the construction of the railway, he stands in reference to the other property not taken like similar property-owners in the neighborhood. His neighbors are not required to surrender this prospective enhancement of value in order to secure the increased facilities which the railroad will afford. If he is compelled to contribute all that he could possibly gain by the improvement, while others in all respects similarly affected by it are not required to do so, he does not receive the equal protection of the law. The work is not being done for his benefit, but for the pecuniary advantage of those who are constructing it. The law will not imply a promise on his part to pay anything toward it.
His property will be similarly benefited by many of the improvements in the vicinity,—by the erection of mills, schoolhouses, churches, etc.,—as will also the railroad after it has been constructed. This expected enhancement of value through the general improvement of the country is a legitimate motive for investing in property or for building a railroad. The improvements made by each one adds to the value of all the property in the vicinity. The.right to share in the general prosperity cannot be taken from any one for the advantage of others.
In consideration that the community will be benefited, private persons are allowed to exercise the right of eminent domain. The parties constructing a railroad agree to thus s'erve the public, being allowed to charge for the service. The consent of the public to this use of the right of eminent domain included the consent of the property-owner. To compel
him. to give up or pay full value for his share of the common benefit is to'take from him the consideration for which he gave his consent while others are allowed to retain it. In this he is not equally protected by the law. (Lewis on Eminent Domain, sec. 471, and authorities cited in note.)
Special benefits, as I have said, are such as are peculiar to the property which it is alleged has been damaged, such as are reasonably certain to result from the construction of the work. Illustrations are afforded where a marsh will be drained or levee built which will protect the land from floods. It is generally thought that different considerations must be applied to such benefits. They are not involved here.
Often special benefits, which afford protection to1 the land, or will at once render it more productive, are taken into consideration in determining how much land not taken will be damaged. Only the arbitrary rule of the statute which requires separate findings of benefit and damage will prevent this. These are matters, however, which need not be deter.mined in this case.
The judgment and order are reversed and a new trial ordered.
■
Harrison, J., Van Dyke, J., Henshaw, J., Beatty, C. J., concurred.