The herald., 1894-09-12
A MIXED CONDEMNATION.

The Supreme Court Outs the Gordiau
Knot-A San Diago Case Decided.
An opinion WAS received by Deputy
Sesnon of the supreme court yesterday.
| for filing in Los Angeles, in the case Of
the Los Angeles, Pasadena and Glendale
railway company respondent ,vs. Minnie
Rump, appellant.
The action wac one to condemn a
right of way over the appellants prem
ises.N Upon the first trial OF the Gaze a
Judgment was entered October g. 1890,
fixing the damages of defendent, Minnie
Rump, as follows: Value of land taken,
SIS; cost of fencing, $780, damages by
severance. 5000; total, $775 and costs.
The plaintiff paid the damages into
court. and took possession and construct.
ed it's road. The defendant received the
money so paid, and having filed her
abandonment OF all defenses to the &C.
ton except her claim 10 a greater COM
pensation, moved for new trial, and
her motion having been denied, appeal
ed to the supreme court. 1t reversed
the Judgment and order OF the superior
court, upon the ground that the cost of
fencing, So found, was against the evil
dence.
Ia Decem Der, 1892, second trial was
had, and the damages awarded were as
follows:
Value land, s1O6.43; fencing, SIPS;
damage by severance, $500; total,
$53l.43.
Upon this state of the case the court
entered judgment by which the de-
fendant was required to refund to the
plaintiff the difference between the
award and the damages upon the
two trials, amounting to $245.57,
less the amount of costa awarded on
the first trial. amounting with interest
to SLIT 81, thus giving judgment against
her for $66, and the costs OF the second
trial, amounting to 1924, or a total of
$4,000. The defendant moved for q
new trial, which was denied, and this
appeal taken.
The supreme court says that the re.
suit OF the second trial shows that the
first award, if not more than che was
entitled to, was at least just and full
compensation, and that sum having
been paid by the railroad company, and
received by her, she cannot complain il
the costs of an unsuccessful effort TO OBJ
tain greater compensation are taxed
against her.
In regard to the appellants contention
that che was improperly required to re.
fund to the railroad company the differ
enoe between the two awards, the court
says after quite long discussion, that
the court having paid the first award to
the defendant in obedience to the
statute, it does not see how it can again
assume control over it, or direct to what
purpose the defendant shall apply it, in
the absence OF statute authorizing it,
the proceedings being purely etatutory.
The court finally decides that the costs
.. of the first trial. taxed against the plain.
| tiff and remaining unpaid, together with
interes thereon, and the costs of this
appeal, also taxed to the plaintiff, to-
gether with the costs Of the former APP
peal, if unpaid, should be set off against
the costs of the second trial, taxed to
defendant, go far as they will compen-
safe each other, and Judgment en-
tered in favor OF the party 10 whose
favor the balance may be for the excess,
leaving in defendant's hands the amount
of the first assessment of damages
which was paid over to her by the court
pursuant to the statute. The order de-
nying new trial is affirmed and the
judgment ordered modified to conform
to the views expressed
The judgment of the San Diego supe.
rior court is reversed in the case of j.
D. Palmer ct al, respondents, We. John
E. Lavigne ct al, appellants. This was
an action TO fOrecose mechanics lien.
Plaintiffs had judgment. The superior
court directs the court delow to sustain
the demurrer of Mary @. Levigne to the
amended complaint.