California Pacific Railroad v. Central Pacific Railroad

47 Cal. 528

• Court: California Supreme Court
• Decided: July 1, 1874
• Docket: No. 2,328
• Status: Published

Opinion

By the Court, McKinstry, J.:

On the presentation of a petition by the corporation plaintiff for the condemnation of certain lands of the defendant, the District Court ordered that (upon the filing of the bond mentioned in the thirty-fourth section of the railroad Act of 1861, as amended April 27th, 1863), the petitioner “have the right and privilege” to tear down a wharf of the defendant, the Central Pacific Company, to lay a track through its premises, removing any buildings or structures in the way, and to extend its track across the tracks of- said defendant; and also to take possession of all the lands sought to be condemned, and to use the same during the pendency of the proceedings.

It is admitted by counsel that there was no appeal from this order. The District Court had no jurisdiction to make such an order. (Davis v. San Lorenzo Railroad Company, ante, 517.) It seems clear that the defendant had no plain, speedy, and adequate remedy, except by certiorari. An action for a trespass, done under color of the order, might, perhaps, give compensation for the actual damages sustained, but the defendant has the right to have the order annulled, before the damages it purports to authorize have been committed. He is not bound to wait until the injury is done, but may demand relief by way of protection against injuries contemplated by the order itself. The same language was employed in the chapter of the Practice Act which treated of the writ of mandate. But this Court held that, to supersede the remedy by mandamus, the partymust not only have a specific, adequate legal remedy, but one competent to afford relief upon the very subject-matter of his application, and one which is equally convenient, beneficial, and effective as the proceeding by mandamus. (Fremont v. Crippen, 10 Cal. 211; Babcock v. Goodrich, ante, 488.) Assuming, for the purpose of the argument (what we do not decide), that, if a party has an equally effectual equitable remedy, he cannot resort to certiorari, a Court of Equity would not enjoin trespasses threatened under such an order, simply on the ground that the order is void. (Chipman v. Bowman, 14 Cal. 157; Logan v. Hillegass, 16 Cal. 200.) In such case the complainant would have to allege and prove peculiar circumstances, of the same nature as those which are necessary to invoke the interposition of equity to restrain trespasses threatened by persons without' right or color of right.

The order of the District. Court must be declared to be, and the same is adjudged, null and void.

Neither Mr. Justice Bhodes, nor Mr. Justice Crockett, expressed an opinion.