I. The demurrer to the answers was well taken.
The answers traverse the allegations in the application of a desire to purchase, a disagreement in price, and a refusal to convey. These traverses were demurred to on the ground that the allegations to which they apply were in their nature not traversable--the desire to purchase, the disagreement in price, and the refusal to convey being facts merely preliminary to the issue of the order of notice, required to be made to appear by the application only, and needing no other proof--not even a jurat to the application.
The act provides that " Whenever it shall be made to appear * * * upon the application of any authorizedagent of the United States that the said United States are desirous of purchasing any tract of land * * and that the owners * * from disagreement in price * * refuse to convey said lands to the United States, it shall be the duty of the Judge * * to order notice of the said application to be published," etc. (Sec. 1.)
The obvious meaning of this is, that when these facts appear by the application, the notice shall be ordered. This view is strengthened by the fact that the statute contemplates that the order shall be given ex parte; it does not require the application to be sworn to, nor any showing to be made, and it gives no one any opportunity to appear to contest any allegation until the return-day of the notice.
The act provides that the notice shall require all persons interested in said lands to come forward, on a day to be specified in said notice, and file their objections, if any they should have, to the proposed purchase. Until that day no one has his day in Court; the proceeding being special and governed by the act, which gives no day in Court prior to the return-day.
On the return-day it is too late to controvert these facts. The allegation of them hasthen served its purpose--it has obtained the order of notice and is functus officio. The pleader must direct himself on the return-day to other matters--to matters of substance, and to those, indeed, pointed out by the statute as subject to his objections. He is authorized to file objections to the proposed purchase--to the acquisition of the land by the proceedings then afoot by the application. It would be no objection to the condemnation of the land to say that the United States did not desire to purchase, had had no disagreement about price, had met no refusal to convey. It were folly to say to a man who takes the only step to purchase, " You don't wish to purchase." Equally so to say " You have never disagreed about a price," when his very act in taking steps to purchase is inconsistent with an agreement, and everything but a disagreement; so also to say, " I refuse to convey now, because I did not refuse heretofore."
II. The pretended purchase by the United States is irrelevant. The State of California is the actor in this proceeding, and there is no privity between her, or her representative Gilmer, and Throck-morton, so far as the pretended purchase is concerned. The United States is no party to the proceeding.
This Court has decided that the State is the actor in this proceeding; that it is the right of the eminent domain of the State which is being exercised; that Gilmer is her agent, and that the deed contemplated by the statute, though made to the United States, is in effect to her. (Gilmer v. Lime Point , 18 Cal. 229.)
If the State is the actor here, there can be no doubt, as a corollary, that the plea of a purchase by the United States is irrelevant, and constitutes no objection to the proceeding. The State can take all the property within her limits by virtue of the eminent domain, regardless of liens and incumbrances; regardless who is the owner, what rights exist in it, or what obligations are owing concerning it. She takes it at its present intrinsic value--cutting off all hope of prospective speculative value--extinguishing, so far as they affect her, all unwise or unfortunate bargains others may have made concerning it.
In this case the State says to the owner: I want your land for my purposes; it may be the United States have contracted with you for the purchase of it, but that is nothing to me; if you hadconsummated the sale and it belonged to the United States, I would take it if I wanted it. (5 McLean, 517.) Nor can I be governed by the price you and the United States fixed upon it, if you did fix upon a price. I will give its intrinsic value. And this is not unjust. It is but another way to arrive at what is according to the dictate of equity. If the United States were actors here, and the supposed contract pleaded and allowed as a shield, it would not be conclusive as to price, (and that is the only point for which it is used) assailed as it is in advance by the allegation in the application, that in that respect the contract is hard and unconscionable, and cannot and ought not to be enforced in a Court of Equity.
But this is not a suit in equity, and even if the United States were the actors, such objection or defense as the supposed contract and the equities arising from it could not be interposed. The proceeding is special and anomalous.
III. The pretended contract between Throckmorton and the United States, when offered as evidence to prove the value of the tract, was properly ruled out. It was irrelevant--it did not tend to prove the value. The price fixed by itwas a mere opinion. How sound or unsound it might be, it furnishes no data to show.
IV. Evidence as to the value of the premises as a site for fortification was properly ruled out, for the reasons stated in the objection to such evidence.
JUDGES: Baldwin, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.
OPINION
BALDWIN, Judge
We take a different view of this case from that of the Court below. These proceedings for the condemnation of land are to be regarded as those of a special inquisition, and though taken under the Act of 1859, by the District Court or Judge, yet are to be construed, not by the general rules applicable to Courts of general jurisdiction, but as the acts of a Court which sits in this matter under a special statutory authority.
We have held that the Act of 1859 is constitutional. The condemnation of the land can only be made in pursuance of the provisions of the statute, the title coming to the United States through a compliance with its requirements. Though the State possessed the power to declare that the land should be taken for public uses upon other and different terms and conditions than those set out in the act, it is enough to say that it has prescribed the particular conditions given in the statute, and that these must be followed before a title can vest.
The act provides that whenever it shall be made to appear upon the application of any authorized agent of the United States, that the United States are desirous of purchasing any tract of land for the particular purposes specified in the Act, and that the owners, from disagreement in price, etc., refuse to convey said lands to the United States, it shall be the duty of the Judge to give notice, etc., and it is provided that the parties may come in and contest with the United States the purchase.
We think that this act does not give an unqualified right to the United States to cause this forced sale, or to condemn the land, but only a right qualified by the existence of the particular fact recited, to wit: In this case, by the disagreement between the United States and the owners as to the price. The process of taking land from the citizen without his consent is a harsh measure of governmental necessity, and the Legislature evidently designed that it should only be exercised when other and more usual means have been sought to obtain the property on fair terms, and these have failed. If the parties are willing to sell, the land cannot be condemned if the Government is willing to give what is asked. The Government must have first sought to buy the land before it can be seized. There can be no disagreement until the Government indicates its will or willingness to purchase on some specific terms; it must offer to buy for a stated price, and if the owner declines the offer, then the Government has its remedy. Here the defendant sets up, that not only was there no disagreement as to the price, but the Government agreed with him as to the price, and contracted to purchase at that price. If this be true, the whole foundation of the proceeding falls. This principle is not only supported by the reason of the thing, but it has the express sanction of a decision of the Supreme Court of New York upon a statute of that State, similar in its language, applicable to turnpike corporations. (See Gilbert v. Columbia T. R. Co., 3 Johns Cases, 108.) The Court say: " This is the case of a special power granted by statute, and affecting the property of individuals, which ought to be strictly pursued, and appear to be pursued on the face of the proceedings. (4 Burr, 2244, Comp. 26; 1 Burr, 387; 7 Term Rep. 363.) This is an established rule, and it is important that it should be maintained, especially in cases which so materially interfere with private rights. It does not appear that any disagreement existed between the parties, or that, in consequence of any disagreement, the company applied to a Judge, both of which were requisite to authorize the appointment of Commissioners. The disagreement and consequent application were the foundation of the whole proceedings, and without them the Judge could have no jurisdiction in the case. As they do not appear, we are not to intend they existed."
The argument of the attorney of the United States is, that by the true construction of the Act of 1859, the application of petitioner need only state these facts in limine to authorize the Judge below to act in giving notice, and that no proof of these facts is required, nor are they traversable. We think differently. The first section does not in its language require such construction. It merely states what the contents of the petition or application shall be to authorize these initiatory proceedings; but it does not limit the force or use of the averments to the mere purpose of a statement. The first order determines nothing, but the parties are summoned to contest the purchase, etc., and this involves a right to contest the averments of the pleading which set up a right to condemn the land.
If such construction as that insisted on be given, the result would be, that if the land of one averred to be a minor, or person under disability to contract, were sought to be condemned, he could not show that he was not under disability, nor, probably, could a defendant show that the person starting the proceeding was not an agent of the United States, or that the United States had already bought the land under a valid executory agreement.
Such statutes are in derogation of the general right of the citizen and of common law modes of procedure, and are to be strictly construed. We held this in Bensley v. Mountain Lake Company , 13 Cal. 306. See also 4 Hill, 76; 7 Id. 9; 4 Pet. 162, and the numerous cases cited in note to 3 Johns Cases, supra .
There is nothing in the other errors assigned--as to refusal to permit proof of the contract to establish the value of the land, or rejecting proof of value of the land to the Government as a fort.
The judgment of the Court, condemning the land, is reversed; and the Court below will proceed to retry the case upon the matter of the demurrer and answer, setting up this contract with the Government, and this denial of any disagreement in price.
These matters constitute separate issues, and are wholly independent of any question of the value of the land.
If they should be found for the Government, then it will be time enough to decide whether the verdict assessing the value should be disturbed. As the question has not been argued, we decline expressing any opinion upon it.
Judgment of condemnation reversed and cause remanded for further proceedings in pursuance of the principles of this opinion.