The herald., 1896-11-26
THE MAUD ESTATE.
Judge York Renders an Opinion Against
the City.


Judge York yesterday handed down
an opinion in the case of the City of
Los Angeles against Louise Maud ct
al, wherein it was sought to condemn
land for the extension of Ash street
from Chavez street to Alhambra ave-
nue.. in which judgment is given in favor
of the defendants.
In the answer made to the complaint
it was pleaded affirmatively that the
provisions of the act of 1889 precedent
to the right to condemn land to extend
said street were not complied with. The
court in this connection says
The taking of private property for
public use without the consent of the
owner is an extraordinary proceeding.
ard the right to do so should not be ex-
ercised except in strict accordance with
the law. Inasmuch as the legislature
by the act of 1889 made special provis-
ions for the acquiring of private
property, for the opening or widen,
ing and extension of streets. and
including in these provisions. un-
der certain conditions, a condem-
nation of the private property
sought to be acquired and inasmuch s
those provisions are not in conflict with
the general provisions for the exercise
of the right of eminent domain. but
dQu duQlllONdi requirements III tlle CA
ercise of that right l hold that the act
of 1889 is part of the statutory scheme
for the condemnation of private prop
erty for public use for the purposes pro-
vided for in that act, and that private
property cannot be acquired for such
purposes ekept in pursuance of that
act.
Our supreme court in the case of Da
vies VS.. the City of Los Angeles. Sc Cal
ifornia. 81 construes this act of 1889
as a means by which the value of the
property sought to be condemned may
he ascertained and acquired by agree
ment and says But if the owner is
not satisfied. and refuses to make the
conveyance, then it is provided that the
property may be condemned as in other
ways"
The plaintiff contends that inasmnch
as by section Is of the act of 1889 II
is provided that the complaint may aver
that il is necessary for the city to take
or damage aud condemn the lands or
an ea aee ment therein. as the case may be,
without setting forth the proceedings
provided for, that 1t follows that the
plaintiff IS not required to procure evil
derce Of such proceedings; that no evil
dence is required in support of any fact
which il is unnecessary to allege in the
complaint construe the language of
section IS as meaning that it shall not
ne necessary to set forth various steps
prior to suit to condemn provided Tor
in the act. and 7 hold that complaint
may state such cause of action with
out setting forth any Of those proceed
ings; but II will be noted that the only
thing to be established conclusively by
the Introduction of the resolution of in
tention and the ordinance ordering the
work to be done in the necessity to take
or condemn the property.
'The defendants have uccessfullv
controverted any presumption of the
regularity of the proceedings. and it
appears from the evidence that the
amount fixed TO be awarded to the de-
PENDANTS was not so fixed in accordance
with the provisions of the act of 1883
either literally or substantially: and
hence, that the effort to agree upon
price with the owners which is required
by said act of 1889 has not been made
This effort to agree or to acquire the
property without a suit of condemna-
ton not having been made the condi-
tion precedent to the right of plaintiff to
maintain this action has been proven not
to have existed at the time Of the COM
mencenent Of this action. It follows
that judgment herein should be in favor
of the defendants: and it is so ordered"