Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] 13 Cal. 307 at 319.
Original Opinion of April 1859, Reported at: 13 Cal. 307.
JUDGES: On petition for rehearing, the following opinion was delivered by Baldwin, J. Terry, C. J. concurring.
OPINION
BALDWIN, Judge
On petition for rehearing, the following opinion was delivered by Baldwin, J.--Terry, C. J. concurring:
The petition for a rehearing reviews several portions of the opinion, which constitute but little, if any, part of the controlling reasons of the conclusion. We attached no importance to the action of the Board of Supervisors, though their action was stated as one of the facts in the case.
We supposed that, as the Commissioners assessed to Emerson three thousand dollars, for land in his possession and injury to the crops, and these three thousand dollars were alleged to have been paid into Court, we might assume that the title was recognized to be in the tenant in possession, to or for whom compensation for the land was proposed to be made by the defendant.
When we spoke of notice to the plaintiffs, we spoke of legal notice--not of loose conversation on the street or elsewhere. If any notice is required to give effect to judicial proceedings, it is notice in that authentic shape which binds parties to the result of a judicial inquiry. We supposed, too, when a man deposits so large a sum as three thousand dollars in Court, that he is, of course, to be considered as aware of the fact that he has deposited it, and if it be withdrawn by order of Court that he knows of the withdrawal; and that it must be presumed, if nothing more is heard of the money for four years, when he makes another tender of the same sum, that he had received back the money first deposited; and, especially, if he does not deny a specific allegation that he did withdraw it, that this presumption is conclusive.
The main principle upon which we went in the opinion is this: that, after proceedings for a condemnation, which proceedings result in an assessment of damages, the money must, within a reasonable time, be paid or deposited; and if four years intervene before such an act is done, the proceedings must be held to be discontinued; and that a deposit does not mean merely formally putting the money into Court and then withdrawing it.
That a party is not bound to wait after a deposit and withdrawal of the money for years to see whether the party seeking to condemn it intends completing the process by which alone he can get title. This proposition is wholly independent of the question whether the value of the property rises or falls in the meantime; though, if it be stationary, the difference is the difference between money and four years' credit and the difference between an immediate forced sale on the terms the law annexes, and a sale to take place at the convenience of the person condemning the land.
We did not overlook the point that the injunction order restored the plaintiff to the possession.
This was irregular. But the case was tried on the merits, and the plaintiff then, according to our view of the case, would have been entitled to an order of restitution of a possession improperly taken under color of these illegal proceedings.
This being so, the Court of Equity only erred as to the time of making this order; the whole record being before us in a chancery case, we would not reverse for an error which does no legal damage, merely because the Court did at first irregularly what at last it would have been bound to do.
Rehearing denied.