I dissent.
The question is, Did the inaction of the plaintiff municipality for four years and seven months constitute an implied abandonment of the proceedings? It must be conceded that the trial court had not lost jurisdiction by the delay, even though the delay of nearly five years may render the judgment erroneous. In determining the true effect to be given to this unconscionable, unreasonable, and wholly unjust lapse of time, consideration must be given to the fact, first, that the right of eminent domain provided for by statute is in derogation of common right and therefore must be strictly construed. (Bensley v. MountainLake Water Co., 13 Cal. 306 [73 Am. Dec. 575]; Gilmer v. LimePoint, 19 Cal. 47; Trumpler v. Bemerly, 39 Cal. 490; Chase v. Putnam, 117 Cal. 368 [49 P. 204].)
A careful study of the statutes providing for the exercise of the right of eminent domain clearly indicates an intent on the part of the legislature to prevent any unreasonable delay. For example: In the Improvement Act of 1903, Statutes of 1903, page 376, section 9, it is provided: "the referees shall at once proceed to view the land sought to be condemned," and, again [Stats. 1909, p. 1038], "they shall make and file with the clerk a written report of their findings, and of their necessary expenses within thirty days after the date of their appointment, provided, however, that the time so allowed may be extended upon good cause shown, by the court or judge thereof, but such extension shall not exceed ninety days." It is also well to note that section 10 provides that the compensation and damages shall be deemed to have accrued at the date of the order appointing the referees or of the order setting the cause for trial.
Further light for the proper interpretation to be placed upon the delay is found in section 1251 of the Code of Civil Procedure, providing that upon condemnation payment must be made by the plaintiff within thirty days after *Page 678 final judgment, except that in case it appears by affidavit that bonds of the state or of public corporations must be sold in order to provide the money, the sum may be paid within one year, and excepting, further, that if the bonds cannot be sold by reason of litigation the time during which such litigation is pending shall not be considered a part of the one-year period. Section 1255a of the Code of Civil Procedure provides that the plaintiff may abandon the proceedings at any time after filing the complaint and before the expiration of thirty days after final judgment by serving on defendant and filing in court a written notice of such abandonment, and "failure to comply with section 1251 of this code shall constitute an implied abandonment and proceeding." It is true that, as suggested in respondent's brief, the abandonment provided for in the Improvement Act of 1903 does not mention an implied abandonment. Nevertheless this cannot be considered as controlling in the premises for the reason that it not only appears from a strict construction, but also it appears to have been the intent of the legislature, that payment for property taken under the statutes providing for eminent domain and the acquisition of property without the consent of the owner and against his will should be paid for within a limited period of time. Under the general procedure, if the trial is delayed for more than one year after the commencement of the action, damages are deemed to have accrued at the date of the trial rather than at the date of the issuance of summons (sec. 1249, Code Civ. Proc.), another clear indication that the legislature contemplated no unreasonable delay in proceedings having for their purpose the acquisition of another's property without his consent.
It is true that in the case of Bensley v. Mountain LakeWater Co., 13 Cal. 306 [73 Am. Dec. 575], it appeared that the court had made an order dismissing the action and that the deposits and collateral security had been withdrawn. In this case the commissioner's report was filed on August 23, 1853; the order of dismissal had been entered December 25, 1856, and on June 29, 1857, final order for judgment condemning the property was entered. It is also true that that was an action brought to enjoin the defendant from exercising any right claimed under the judgment. The *Page 679 court, however, gave little consideration to these facts, but says: "But to steer clear of any disputed facts, the broader question may be made, whether the party, after procuring an order for the condemnation of property, to public use, can lay by for four years without complying at all with those requirements of the proceeding which are of service to the owner, and then without notice give effect to the previous and initiatory acts, through which he deraigns his title. This statutory power of taking property from the owner, without his consent, is one of the most delicate exercises of governmental authority. It is to be watched and guarded with jealous scrutiny. Important as the power may be to the government, the inviolable sanctity, which all free constitutions attach to the rights of property of the citizen, constrains the strict observance of the substantial provisions of law, which are prescribed as modes of the exercise of the power, and to protect it from abuse. All statutory modes of divesting titles are strictly construed, and to be strictly followed. He who relies for a title upon an extraordinary mode of acquisition given him, not by the will of the owner, expressed or implied, but against his will and by the mandate of the law, must show for his warrant a strict compliance with those statutory rules from which his title accrued," and, again, "If we were to hold that by force of these proceedings, in 1853, this company had a right to wait until 1857, and then insist upon giving them effect, we must necessarily hold that the property condemned need not be paid for according to its valuation or real value in 1857, the time when really taken, but may, in effect, be paid for according to its assessed value in 1853, when proceedings were first instituted, and be paid for, not in cash, but on four years' credit, without security. Nay, more, that it might be taken at the mere option of the company, without any sort of obligation on their part to take it, if they chose to decline, as possibly they might, if it deteriorated in value. It would be a unilateral contract, binding one party, but not binding the other; and, translated into plain English, would mean: `If we (the company) choose, we will take your (Emerson's) land four years hence, by paying for it what is now assessed as its value. You are to keep it for us, and not sell it, for all that time; but if it declines in value *Page 680 or we do not choose to take it, we will not do so.' No sane man, if left to his volition, would make such a trade, and we think we have shown that the law is not so unjust or arbitrary as to make such a bargain for a citizen when it subjects him to its power"; and again the court says, "To entitle the company to take the property on those terms they must avail themselves of the privilege within the proper time. The lapse of a reasonable time without availing themselves of the privileges was itself an abandonment of all claim to it. To say the very least, when a year had passed and no offer made, the proceedings were effectually discontinued. "We think it is well to note that on a petition for a rehearing this statement is made: "The mainprinciple 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." To the same effect is PortTownsend Southern R. Co. v. Barbare, 46 Wn. 275 [89 P. 710], Wagner v. Bealmear Son, 135 Md. 690 [109 A. 466], and Nichols on The Power of Eminent Domain, section 342. It might be argued that there is a difference in this case from one in which the time started to run and the delay occurred after the entry of the interlocutory judgment, but in the absence of all statutory regulations the time after the entry of the interlocutory judgment would be a reasonable time, and the same cogent reasons apply to an unreasonable delay after trial which apply to an unreasonable time after interlocutory judgment. In principle there is no distinction.
Assuming for the purpose of argument contrary to the undisputed fact that the delay was occasioned not by the plaintiff but by the court in its failure to render its decision, it does appear that those things which would constitute an abandonment by the plaintiff, if done by the plaintiff, would, if suffered to be done by the court, constitute error and the court should have declined to sign the findings and interlocutory judgment. The latitude permitted by the directory character of section 632 of the *Page 681 Code of Civil Procedure should have been limited and controlled by the nature and character of the action here involved. That section must have some effect and where, as here, the character of the action is such and the delay so great that it is wholly inequitable to go forward, it is error for the decision to be entered. If equity would interfere to restrain the assertion of rights founded on the judgment, as was done in Bensley v.Mountain Lake Water Co., supra, the reasons impelling equity's interference should have restrained the hand of the court in the first instance and impelled it to enter a dismissal if it is found impossible under the authorities to have granted damages as of the date of resetting the cause for trial. The writer is of the opinion, however, that the motion for a new trial waived the right of dismissal if the new trial were granted.
It is plaintiff's position that the defendant acquiesced in the delay and therefore cannot be heard to complain. This position might be tenable had the defendant ever agreed or consented to the disposition of her property, but if she chose to permit the abandonment by lapse of time or otherwise, it seems that the city, upon whom is cast the duty of meeting statutory requirements and equitable compensation, cannot urge her acquiescence as an excuse for its own delay. In fact she may have been more than willing that they delay, but the record does not disclose anything actively done by her to bring about the delay and therefore it does not seem that she should be chargeable in any way therewith.
The affidavits used on the motion for a new trial, without contradiction, show a great increase in value and it is no answer to suggest that the value might have decreased because then the injury would fall where it belonged, upon the slothful.
A petition for a rehearing of this cause was denied by the district court of appeal on December 9, 1926, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 6, 1927. *Page 682