23 Cal. 324, Contra Costa Coal Mines R. R. Co. v. Moss

Citation:23 Cal. 324
Opinion Judge:CROCKER, Judge
Party Name:CONTRA COSTA COAL MINES RAILROAD COMPANY v. J. MORA MOSS et al., Defendants, and MOUNT DIABLO RAILROAD COMPANY, Intervenors
Attorney:John B. Felton and J. W. Stephenson, for Defendants and Intervenors, Appellants. Pratt & Clarke, for Respondents.
Judge Panel:JUDGES: Crocker, J. delivered the opinion of the Court. Cope, C. J. and Norton, J. concurring.
Case Date:October 01, 1863
Court:Supreme Court of California
 
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23 Cal. 324

CONTRA COSTA COAL MINES RAILROAD COMPANY

v.

J. MORA MOSS et al., Defendants, and MOUNT DIABLO RAILROAD COMPANY, Intervenors

Supreme Court of California

October, 1863

Appeal from the District Court, Fourth Judicial District, Contra Costa County.

COUNSEL:

John B. Felton and J. W. Stephenson, for Defendants and Intervenors, Appellants.

Pratt & Clarke, for Respondents.

JUDGES: Crocker, J. delivered the opinion of the Court. Cope, C. J. and Norton, J. concurring.

OPINION

CROCKER, Judge

This is a proceeding under the general Railroad Law of this State to condemn land for railroad purposes. The defendants appeared and filed a demurrer to the petition of the railroad company, setting up various grounds. The Court sustained the demurrer and allowed the plaintiffs to amend their petition; and the granting leave to amend is now assigned as error. The principal grounds of the demurrer were, that the petition did not state that the land sought to be acquired was necessary for the purposes of the company; and that it did not show that the company could not contract for the purchase of the land. It is insisted that these averments were essential to give the Court jurisdiction of the proceedings; that the Court had no power to allow the plaintiffs to amend their

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petition; and that the Court could not acquire jurisdiction by the amended petition; and that it was the duty of the Court, upon sustaining the demurrer, to dismiss the proceeding. Sec. 23d of the general Railroad Law of 1861, under which these proceedings were prosecuted, contains this provision: " If such company cannot contract for the purchase of any real estate, or any right, title, or interest therein, necessary for any of the purposes aforesaid, from the person or persons owning the same, then such company may acquire the same, for the purposes in this section expressed, by means of the special proceedings prescribed in this act." Under a clause of the same character, though differently worded, it was held, by this Court, that the person applying for a condemnation must have first sought and failed to buy the land from the owner. ( Gilmer v. Lime Point , 19 Cal. 47.) The Legislature of 1863 (Stat. 1863, 613) so amended Sec. 23 of the general Railroad Law as no longer to make this inability to contract a condition or ground of jurisdiction in proceedings to condemn land. The power of the Legislature to declare the terms and conditions upon which such proceeding might be instituted, was fully sustained in that case.

Sec. 33 of the general Railroad Law contains this provision: " The said Court or Judge may make all such orders as may be necessary or proper in the special proceedings provided for in this act, and shall cause the pleadings and proceeding to be amended whenever justice shall require it to be done, and shall direct the manner of the service of all orders and notices not herein specially provided for." It is clear that the Court had full power, under this provision, to grant leave to the plaintiffs to amend their petition. The mere fact that the matters to be amended related to the jurisdiction of the Court over the proceedings can make no difference. The power to cause amendments to be made is granted in general terms, unqualified by anything which would justify the Court in refusing leave to amend in the matters objected to in this case. This point is therefore overruled.

It is next objected that the corporation, plaintiffs in this case, are a private company, incorporated for the advancement of their own private enterprise of coal mining, and not as common carriers for

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the public convenience; and it is therefore urged that they...

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