56 Cal. 8, 6,752, City of San Jose v. C. Freyschlag

Docket Nº:6,752
Citation:56 Cal. 8
Opinion Judge:ROSS, Judge
Attorney:D. M. Delmas, for Appellant. D. W. Herrington, for Respondent.
Judge Panel:JUDGES: Ross, J. McKinstry, J., and McKee, J., concurred.
Case Date:July 01, 1880
Court:Supreme Court of California

Page 8

56 Cal. 8




No. 6,752

Supreme Court of California

July, 1880

Department One

Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Twentieth District Court, County of Santa Clara. Belden, J.


D. M. Delmas, for Appellant.

The question of dedication was not presented by the pleadings, and can never arise in a case like the present. ( Code Civ. Proc. §§ 1237- 9, 1241, subd. 2; Green v. Chandler , 54 Cal. 626.) The very action to condemn necessarily admits title in the defendant, and leaves the question of damages the only one to be debated. (The Peoria etc. v. Lawrie , 63 Ill. 264, 266; The Pres. etc. v. Givens , 17 id. 255, 257; Metropolitan v. Chicago, 18 Alb. L. J. 517; The Houston etc. v. Beckett , 26 Ind. 53, 58.)

D. W. Herrington, for Respondent.

This proceeding is the proper one to accept the gift, and subject the dedication to proper control. (Stone v. Brooks , 35 Cal. 501; 21 N.Y. 474; 23 id. 64-5; 16 Barb. 251-4.) The finding of dedication bythe jury was a probative fact within the issue of value involved in the pleadings. The value found by the jury was in gross; that found and awarded by the Court was this value, less the value of the use found to be dedicated to the public. It was proper to show that the estate taken was of nominal value.

JUDGES: Ross, J. McKinstry, J., and McKee, J., concurred.


ROSS, Judge

Page 9

The City of San Jose commenced this action in the late Twentieth Judicial District Court, to condemn certain property to public use as a street. The complaint contained all the allegations necessary to warrant a condemnation, and, among other things, alleged " that the lands through which the proposed street will run is claimed by defendants, and is in their possession," and " that the defendants are the only owners or claimants of the premises * * * sought to be condemned as, and for an extension of (said) street." The answer of the defendant Freyschlag, who is the appellant here, avers that he is the owner of the property sought to be condemned, and, in effect, asks that he be allowed as damages, first, the value of the land to be taken, and, secondly, the damage to his remaining land. The jury, in answer to special issues submitted to them, found the value of Freyschlag's land necessary...

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