Schrader v. Third Judicial Dist. Ct. in and for Eureka County

• Decision Date: 17 November 1937
• Docket Number: 3212.
• Citation: 73 P.2d 493,58 Nev. 188
• Parties: SCHRADER v. THIRD JUDICIAL DISTRICT COURT IN AND FOR EUREKA COUNTY et al.
• Court: Nevada Supreme Court

73 P.2d 493

58 Nev. 188

SCHRADER v. THIRD JUDICIAL DISTRICT COURT IN AND FOR EUREKA COUNTY et al.

No. 3212.

Supreme Court of Nevada

November 17, 1937

Original proceeding in certiorari by E. J. Schrader against the Third Judicial District Court of the State of Nevada, in and for the County of Eureka, and the Honorable James Dysart Presiding Judge, to review an order made by the court in a condemnation suit.

Proceeding dismissed.

James T. Boyd, Geo. B. Thatcher, and Wm. Woodburn, all of Reno, for petitioner.

Hawkins Mayotte & Hawkins, of Reno, for respondents.

COLEMAN Chief Justice.

This is an original proceeding in certiorari to review an order made by the respondent court in a condemnation suit instituted pursuant to chapter 66, vol. 4, N.C.L. (section 9153 et seq.).

The order sought to be annulled is one authorizing the Roberts Mining & Milling Company to occupy the premises sought to be condemned, pending the action. The order in question was made after notice of the intention to apply for such order was served upon the county clerk of Eureka county, in which the property is situated; the petitioner herein (defendant in said suit) being a resident of Washoe county.

The sole contention made in this proceeding is that the statute (section 9162, N.C.L.) authorizing the serving of such notice in the manner complained of is in violation of the provisions of both the State and Federal Constitutions guaranteeing due process of law, hence is null and void, and therefore the respondent court acquired no jurisdiction to make it.

Article 1, section 8, of the Constitution of Nevada, so far as here material, reads: "No person shall be *** deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation having been first made, or secured."

Amendment Fourteen of the Federal Constitution provides that: "No State shall *** deprive any person of *** property, without due process of law."

We will not incumber this opinion by detailing all of the allegations of the petition, nor all that appears from the record sent up by the respondent court, but only enough will be stated to make clear the situation presented.

It appears that on July 15, 1937, Roberts Mining & Milling Company, a corporation engaged in the working of mining property, commenced an action in the respondent court against petitioner and others, to condemn portions of certain mining claims owned by this petitioner, situated in Eureka county Nev.; that a copy of the complaint, attached to a copy of the summons in said action, was served upon the petitioners herein on August 2, 1937.

It further appears that on July 15, 1937, the respondent court entered an order shortening the time for hearing of a motion on the part of the plaintiff in said condemnation action, for leave to immediately enter upon, take possession of, and occupy, the property in question pending and until the final determination of said action, and set the hearing for 10 o'clock a. m. on July 21, 1937, and further ordered that said notice of motion be served upon the defendants in said action, as provided by statute.

This defendant being a nonresident of Eureka county, the said notice of motion was served upon him by service upon Ed. Delaney, clerk of the said court, as provided in section 9162, N.C.L., which reads: "The plaintiff may move the court or a judge thereof, at any time after the commencement of suit, on notice for such time as the court or judge may direct to the defendant, if he is a resident of the county, or has appeared in the action, otherwise by serving a notice directed to him on the clerk of the court, for an order permitting the plaintiff to occupy the premises sought to be condemned, pending the action, and to do such work thereon as may be required for the casement sought, according to its nature. The court or a judge thereof shall take proof by affidavit or otherwise, of the value of the premises sought to be condemned and of the damages which will accrue from the condemnation, and of the reasons for requiring a speedy occupation, and shall grant or refuse the motion according to the equity of the case and the relative damages which may accrue to the parties. If the motion is granted, the court or judge shall require the plaintiff to execute and file in court a bond to the defendant, with sureties, to be approved by the court or judge in a penal sum to be fixed by the court or judge, not less than double the value of the premises sought to be condemned and the damages which will ensue from condemnation and occupation, as the same may appear to the court or judge on the hearing, and conditioned to pay the adjudged value of the premises and all damages, in case the property is condemned, and to pay all damages arising from occupation before judgment in case the premises are not condemned, and all costs adjudged to the defendant in the action. The sureties shall justify before the court or judge, after a reasonable notice to the defendant of the time and place of justification. The amounts fixed shall be for the purpose of the motion only, and shall not be admissible in evidence on final hearing. The court or judge may also, pending the action, restrain the defendant from hindering or interfering with the occupation of the premises and the doing thereon of the work required for the easement."

Counsel for petitioner relies upon the following authorities to sustain his contention that the order in question resulted in the taking of petitioner's property without due process of law: California P. R. Co. v. Central P. R. Co., 47 Cal. 528; Davis v. San Lorenzo R. R. Co., 47 Cal. 517; Hettel v. District Court, 30 Nev. 382, 96 P. 1062, 133 Am.St.Rep. 730; Golden v. District Court, 31 Nev. 250, 101 P. 1021; State v. Wildes, 34 Nev. 94-123, 116 P. 595; 20 C.J. 927, § 343 et seq.; Lewis' Eminent Domain (2d Ed.) §§ 364, 365; Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 260, 72 L.Ed. 446, 57 A.L.R. 1230.

Before entering upon the consideration of the specific question involved, we think it will be well to consider the power of a sovereign state in the exercise of the right of eminent domain, unhampered by constitutional limitations. This viewpoint is so admirably expressed by Mr. Justice Field in the case of Mississippi & R. R. Boom Co. v. Patterson, 98 U.S. 403, 406, 25 L.Ed. 206, we content ourselves with quoting from it: "The right of eminent domain, that is, the right to take private property for public uses, appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty. The clause found in the Constitutions of the several States providing for just compensation for property taken is a mere limitation upon the exercise of the right. When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. The property may be appropriated by an act of the legislature, or the power of appropriating it may be delegated to private corporations, to be exercised by them in the execution of works in which the public is interested. But notwithstanding the right is one that appertains to sovereignty, when the sovereign power attaches conditions to its exercise, the inquiry whether the conditions have been observed is a proper matter for judicial cognizance. If that inquiry take the form of a proceeding before the courts between parties,--the owners of the land on the one side, and the company seeking the appropriation on the other,--there is a controversy which is subject to the ordinary incidents of a civil suit, and its determination derogates in no respect from the sovereignty of the State."

From the above quotation it is seen that the authority of the state to take private property for public use is plenary, except where restricted by constitutional limitations, and section 4154, N.C.L., provides that mining for gold and other valuable metals is the paramount interest of this state and declared to be a public use, as has often been recognized by this court. Goldfield Consol M. Co. v. Old Sandstorm, etc., Co., 38 Nev. 426, 427, 150 P. 313.

It will be observed that the statute pursuant to which the notice was served upon the clerk of the court makes no provision for sending it to a defendant in an eminent domain proceeding. It is for this reason that it is contended that the petitioner had no notice of the proceeding, and that the authority last cited controls.

The facts of that case, so far as here material, are that Pizzutti, a resident of New Jersey, was injured by Wuchter, a nonresident, by being struck by an automobile driven by Wuchter while traveling along a highway in New Jersey, and that service of summons was sought to be obtained on Wuchter by serving a copy thereof on the Secretary of State of New Jersey, pursuant to the statute of that state. The court in that case states the question involved as follows: "The question made in the present case is whether a statute, making the secretary of state the person to receive the process, must, in order to be valid, contain a provision making it reasonably probable that notice of the service on the secretary will be communicated to the nonresident defendant who is sued. Chapter 232 of the Laws of 1924 [Comp.St.Supp.N.J.1924, § 135--93 et seq.] makes no such requirement and we have not been shown any provision in any applicable law of the state of New Jersey requiring such communication. We think that a law with the effect of this one should make a reasonable provision for such probable communication." Wuchter v. Pizzutti, supra.

The court holds in that case that the New Jersey statute did not afford due process of law.

The case...