JEROME LINCOLN v. COLUSA COUNTY, 28 Cal. 662

By the Court, Shafter, J. This is an action to recover three thousand dollars as damages alleged to have been sustained by the plaintiff by reason of the location of a public highway over his land by order of the Board of Supervisors of the defendant county. A nonsuit was ordered at the trial on the ground that it was neither alleged in the complaint nor proved as a fact, that the jdaintiff prior to the commencement of the action “could not agree with the Board of Supervisors as to the amount of damages sustained,” nor that he had even attempted such agreement.

The language of the statute is as follows : “If any person or persons claiming damages on account of the location or alteration of any road under the provisions of this Act shall be dissatisfied with the award of the road viewers, and cannot agree with the Board of Supervisors as to the amount of damages sustained, and shall refuse to receive the same, such person or persons shall within ten days from the time of the final hearing, commence an action against the county by name for such damages in a Court of competent jurisdiction ; which action shall be conducted in like manner as other actions in civil cases in the Courts of justice in this State.” (Acts of 1861, p. 392, Sec. 7.) Under the Constitution, private property cannot be taken for public use except upon compensation made.

It is competent for the Legislature to fix the mode of condemnation, the method by which the damages to individuals shall be determined and the proceedings for their recovery. This power has been fully exercised, in relation to lands taken for public highways, in the Act of 1861. Strict compliance with the requirements of the Act is necessary to accomplish a condemnation- on the part of the public, and a like compliance with all the provisions relating to the assessment of damages and their recovery is essential also on the part of the landowner.

Under the Act of 1861, a person whose lands have been taken for a public road has no right of action against the county for damages until after a fair and honest attempt on his part to agree upon the amount with the Board of Supervisors. Such endeavor is a condition precedent to his right to sue. The provision is contained in most if not in all of our statutes relating to the condemnation of private property to public use, whether directly, or indirectly through the action of corporations.

The object of the provision, wherever it appears, is to prevent a waste of money by needless litigation, and to expedite condemnations whenever the public good requires that they should be made. But it is unnecessary to pursue the argument, for in Harper v. Richardson, 22 Cal. 251, the question was presented and decided, and it is broadly within the analogy of Gilmer v. Lime Point, 19 Cal. 47.

Not only was the complaint defective on the ground that it contained no averment that the plaintiff “ could not agree ” with the Board of Supervisors on the damages, but the evidence upon which appellant relies as making out the fact itself, has no tendency to prove it. The petition for the road was presented to the Board of Supervisors on the 4th of August, 1862; and on the same day the plaintiff filed with the Clerk of the Board a petition for “just and reasonable damages,” in the event that the road should be laid out.

The filing of this paper with the Clerk was the only step taken by the plaintiff from first to last, in the matter of the damages. The fourth

section of the Act of 1861 provides that “any person owning land through which it is proposed to locate a public highway, and desiring to apply for damages in consequence of such location, shall make application by petition in writing to the Board of Supervisors on the day on which such application shall be made, wherein he shall set forth the particular road referred to, the amount and character of the land affected thereby, and other circumstances relating to the subject of damages upon such land; and all persons who fail to do so shall be considered as waiving all rights to damages.” Obviously, the plaintiff’s purpose in filing his petition with the Clerk was to avert the consequence which the statute would have coupled with a failure on his part so to do.

The petition was in the nature of a pleading, and was as essential to the life of his claim as is an answer in an ordinary action at law to save a defendant from judgment by default. It was a statute step taken by the plaintiff by way of initiating a claim for damages against the county, and the most that can be said concerning the document, is, that the plaintiff, by filing it, took the first step in the statute series toward establishing Ms claim. The petition and the filing of it begin and end in that.

If the plaintiff had not filed the petition, there would have been nothing to agree about, for the right would have been lost, and the Supervisors would have been guilty of malversation in office if they had allowed damages to the plaintiff in any amount. An attempt, at least, “ to agree with the Board,” is a condition precedent to a right of action ; and we do not consider that the taking of one step amounts, in legal effect, to the taking of another differing from the first in purpose and essential nature.

Nor is the filing of the petition to be set down for evidence that any overture or other move was ever made by the plaintiff looking to a compromise or agreement respecting his claim. He had his statute opportunity of making the merits of his claim known to the Board on the 22d of September, when they met under the sixth

section of the Act, for the purpose of final action on the general question and all collateral matters connected therewith. But the plaintiff did not make known to the Board on that occasion, nor thereafter, what he conceived to be the amount of his “just and reasonable damages,” nor the amount he would take in conciliation. He did not even attend the meeting. Under this state of facts we cannot consider that the evidence of the plaintiff had any tendency to show that he “ could not agree with the Board of Supervisors as to the amount of damages sustained,” and that he was driven to his action by necessity. Judgment affirmed. Mr. Justice Rhodes expressed no opinion.