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We adhere to the views expressed in the opinion rendered on the former hearing. The purpose of the present hearing was by the order therefor limited to the consideration of the "validity of the condemnation proceedings and the right of the intervener to an easement, under said proceedings, of greater width and extent than that given in the judgment appealed from." The former opinion assumed, without deciding, that the condemnation proceedings
were valid, and declared that the estate thereby acquired by the city of Sacramento was an easement and not a fee. It is claimed, however, that by the proceedings in condemnation the city was given an easement one hundred and sixty-five feet in width for all levee purposes, with the additional right to cause the levee, when completed, to be turnpiked and used as a toll-road, whereas by the judgment appealed from the easement given is only one hundred and forty feet wide, and is further limited so as to give the right to maintain the levee at the existing width only, which is much less than one hundred and forty feet, with no right to a turnpike road, and, as to the remaining width, giving only the right to take earth therefrom to repair the existing levee; so that if the proceedings in condemnation are valid, or if plaintiff is estopped to dispute their validity, the judgment appealed from is erroneous, and a new trial will be necessary.
Respondent now claims that there is no specification of the insufficiency of the evidence to sustain the finding as to the width, extent, and character of the easement. This contention is correct so far as the right to use the levee as a turnpike road is concerned. We think the question of the width of the strip of land in controversy, aside from the character of the estate therein, is sufficiently, though not clearly, presented by the specifications.
The law authorizing the proceedings made no provision for notice to the owners of the property condemned, and the record made of the proceeding is somewhat uncertain in respect to the description of the land taken and also as to the amount of damages awarded, and for these and other reasons the respondent claims that the proceedings are invalid. The law (Stats. 1861, p. 358, c. 352, sec. 16) does not specifically require notice, but it directs that the appraisers, who are appointed by the court exparte, shall proceed to the premises, and examine, hear, and determine as to the damages awarded. The order of the court appointing these appraisers directed them to give notice of the time of the examination and hearing, and this was done to the satisfaction of the court. The constitutionality of such a proceeding seems questionable, but under the doctrine of the decision of the supreme court of the United States in Paulsen v.Portland, 149 U.S. 30, [13 Sup. Ct. 750], the notice given appears to be a sufficient
compliance with the rule that no person can be deprived of his property except by judgment upon due process of law. (See, also,Curran v. Shattuck, 24 Cal. 433.)
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
We adhere to the views expressed in the opinion rendered on the former hearing. The purpose of the present hearing was by the order therefor limited to the consideration of the "validity of the condemnation proceedings and the right of the intervener to an easement, under said proceedings, of greater width and extent than that given in the judgment appealed from." The former opinion assumed, without deciding, that the condemnation proceedings
were valid, and declared that the estate thereby acquired by the city of Sacramento was an easement and not a fee. It is claimed, however, that by the proceedings in condemnation the city was given an easement one hundred and sixty-five feet in width for all levee purposes, with the additional right to cause the levee, when completed, to be turnpiked and used as a toll-road, whereas by the judgment appealed from the easement given is only one hundred and forty feet wide, and is further limited so as to give the right to maintain the levee at the existing width only, which is much less than one hundred and forty feet, with no right to a turnpike road, and, as to the remaining width, giving only the right to take earth therefrom to repair the existing levee; so that if the proceedings in condemnation are valid, or if plaintiff is estopped to dispute their validity, the judgment appealed from is erroneous, and a new trial will be necessary.
Respondent now claims that there is no specification of the insufficiency of the evidence to sustain the finding as to the width, extent, and character of the easement. This contention is correct so far as the right to use the levee as a turnpike road is concerned. We think the question of the width of the strip of land in controversy, aside from the character of the estate therein, is sufficiently, though not clearly, presented by the specifications.
The law authorizing the proceedings made no provision for notice to the owners of the property condemned, and the record made of the proceeding is somewhat uncertain in respect to the description of the land taken and also as to the amount of damages awarded, and for these and other reasons the respondent claims that the proceedings are invalid. The law (Stats. 1861, p. 358, c. 352, sec. 16) does not specifically require notice, but it directs that the appraisers, who are appointed by the court exparte, shall proceed to the premises, and examine, hear, and determine as to the damages awarded. The order of the court appointing these appraisers directed them to give notice of the time of the examination and hearing, and this was done to the satisfaction of the court. The constitutionality of such a proceeding seems questionable, but under the doctrine of the decision of the supreme court of the United States in Paulsen v.Portland, 149 U.S. 30, [13 Sup. Ct. 750], the notice given appears to be a sufficient
compliance with the rule that no person can be deprived of his property except by judgment upon due process of law. (See, also,Curran v. Shattuck, 24 Cal. 433.)
We do not consider it necessary to decide whether or not the proceeding is void because of uncertainty in the description or in the amount awarded as disclosed in the record. We think it was void for other reasons. As stated in the former opinion, section 6 of the act of 1862 (Stats. 1862, p. 152, c. 158) does not authorize the board of city levee commissioners to condemn lands outside the city to be used as a levee. It gives the board power to take land outside the city only for the purpose of obtaining therefrom materials for the construction of the levees within the city. (See Johnston v. Sacramento County, 137 Cal. 204, [69 P. 962].) The land in question was not taken for any such purpose, and if it were so taken it would not authorize the building or maintenance of a levee thereon. The levee in question was constructed by the city levee commissioners solely under the authority conferred by sections 4, 7, and 17 of the act of 1862 (Stats. 1862, pp. 152, 153, 158, c. 158) aforesaid. These sections provided that after the board of state swamp and overflowed land commissioners had finally adopted a plan for the reclamation of swamp-land district No. 2, in which the lands and levee in question are situated, or after such plans had been finally approved at a joint meeting of the state board and city board therein provided for, the city board should proceed to construct that portion of the levees required by such plans, lying within the city, and that as soon as possible the state board should let out contracts for the construction of all the levees outside of the city. Section 17 provided, however, that in case the state board was unable from lack of funds to "let out the constructing the levees" for said swamp-land district in time to have them completed by October 1, 1862, the city levee commissioners could construct so much of said levee as was necessary for the protection of the city, or could advance the funds necessary therefor to the state board, and that the moneys so expended or advanced should be repaid to the city levee fund out of the first moneys thereafter coming into the treasury of the swamp-land district. The plans for the levees outside the city were adopted by the state board, and modified and finally
established at a joint session of the two boards, as provided in the act. The state board was without funds to complete its portion thereof, and let no contracts therefor, but gave notice of its inability to do so to the city board, and requested the latter to act in the premises in accordance with the above provisions of the act. Thereupon the proceedings in condemnation were taken, and the levee was thereafter constructed by the city board. It will be observed that by the scheme provided the levee in question was to be made by the state swamp-land board, and that the city board was empowered to come to the assistance of the state board, and construct the levee in its behalf; but that the authority of the city board to condemn lands for a levee was restricted to lands necessary for levees within the city, and did not include land for this levee, which lay outside of, and to the east of, the city and eastwardly of Burns Slough. The authority to condemn lands for this levee was given to the state board by section 16 of the act of 1861. (Stats. 1861, p. 358, c. 352.) An authority to one party to "construct" a levee on behalf of a second party could scarcely be held in any case to include authority to the first party to condemn the land on which the levee was to be constructed. (10 Am. Eng. Ency. of Law, 1074.) But it clearly cannot be so construed in a case like the present one, where the law by implication withholds such authority to condemn from the first party, and by its terms expressly gives it to the second party. The grant of such power must be by express terms or necessary implication, and the statute conferring it must be strictly construed. (7 Ency. of Plead. Prac., 468; SanFrancisco etc. W. Co. v. Alameda W. Co., 36 Cal. 639; Curran v.Shattuck, 24 Cal. 432; Stanford v. Worn, 27 Cal. 174; Creighton
v. Manson, 27 Cal. 628; Smith v. Davis, 30 Cal. 537; Trumpler v.Bemerly, 39 Cal. 491; Chase v. Putnam, 117 Cal. 368, [49 P. 204].) The proceeding is special and statutory, and the prescribed method must, in such cases, be strictly pursued. A petition to the district court by the state board was required. There is no authority given for the filing of such a petition by any other party. Hence a petition filed and presented by some other party would not give the court jurisdiction to proceed.(Stanford v. Worn, 27 Cal. 171; 7 Ency. of Plead. Prac., 513, 517.) In such special proceedings, where a petition is required, the presentation of a petition
showing authority to proceed is necessary to confer jurisdiction upon the court. (In re Grove St., 61 Cal. 452; Haynes v. Meeks,20 Cal. 315; Meeks v. Hahn, 20 Cal. 626; Fitch v. Miller, 20 Cal. 382; Pryor v. Downey, 50 Cal. 398, [19 Am. Rep. 656]; 15 Ency. of Law Pro. 810, 816; 12 Ency. Plead. Prac., 178.) It follows that the court had no jurisdiction of the proceeding and that the judgment of condemnation was void.
The appellant further claims that the plaintiff's predecessors accepted a part of the award made, or the benefit thereof, and that the plaintiff is thereby estopped from asserting the invalidity of the proceeding or denying the right of the city to an easement of the width and character purported to be given thereby. The amount of the damages awarded was $195.50, and there is no evidence that any part of it was ever paid. The appraiser's report in the proceeding states that the entire tract belonging to the plaintiff's predecessors was subject to taxes of 1859, 1860, and 1861, amounting to $665.96. In July, 1863, the district attorney filed with the city board a claim for $741.39 for the same taxes, then delinquent, and the board thereupon "decided to withhold the same from the amount of damages awarded." The stubs of the warrant-book of the board further show that afterwards warrants were issued to the district attorney for this sum, with a memorandum that the amount was withheld from the damages awarded. There is nothing further to show the reason or purpose of making this payment, if it was made, nor any evidence that the owners consented to the arrangement or had any knowledge thereof, except an admission at the trial by plaintiff's counsel that the "balance" of the delinquent taxes for those years was paid by the owners. There is, however, no evidence that there was any balance. There are other facts inconsistent with an estoppel. The levee at that time covered but a small part of the one hundred and sixty-five-foot strip now claimed, and the excess, it appears, was not then claimed by the city board. In the spring of 1868 the levee was raised several feet and widened so as to be from fifty to seventy feet wide at the bottom. In the following November the city board paid to the then owners $247 for 9.88 acres of land taken for levee purposes on this levee. This would make a strip through the tract eighty-four feet
wide, or forty-two feet additional on each side of the former levee. The inference is thus raised that the owners claimed and the board paid the above sum for the additional land taken by the widening of the levee through that tract, which is inconsistent with the theory that the parties had accepted the award, waived the invalidity of the proceedings, or consented to an easement one hundred and sixty-five feet in width. In view of this conflict in the evidence, and other evidence which we do not consider it necessary to discuss, we cannot say that the finding of the trial court as to the width and character of the easement is not supported by sufficient evidence.
The judgment, so far as it affects the rights of the intervener, is affirmed.
Angellotti, J., McFarland, J., Van Dyke, J., Lorigan, J., and Henshaw, J., concurred.
The following is the opinion above referred to, rendered in Bank on the fifth day of April, 1905: —