No compensation need be made for the vacation of a public street which has not been dedicated by the owners of the land. (Levee Dist. No. 9 v. Farmer, 101 Cal. 178, 35 Pac. 569.)

Money is not that species of property which the sovereign authority can authorize to be taken in the exercise of the right of eminent domain. (Burnett v. Sacramento, 12 Cal. 76; Emery v. San Francisco, 28 Cal. 345.)

The leasehold interest in convicts leased by the state is as much property as are lands held in fee. (McCauley v. Brooks, 16 Cal. 11.)

A franchise for a street railroad is property capable of being benefited by the widening of the street. (Appeal of North Beach etc. R. R. Co., 32 Cal. 499.)

The legislature may grant the right to construct a railroad upon a public street without providing for compensation for the damage done to the owners of the adjacent property, provided the owners of the property are not the owners usque ad filum viae. (Carson v. Central Pac. R. R. Co., 35 Cal. 325.)

A person who owns lots fronting on a street dedicated by himself to the public use is entitled to damages, if a railroad company lays its track along the street, and thereby obstructs it for the use of teams and vehicles, and if the value of the lot is diminished thereby. (Southern Pac. R. R. Co. v. Reed, 41 Cal. 256.)

An act providing that a tax collector shall receive the fees allowed by law, and pay a part of such fees into the treasury for the benefit of the county, does not take private property for public use. (Ream v. Siskiyou County, 36 Cal. 620.)

Public use.-The formation of an irrigation district for the purpose of reclaiming arid land is a public purpose for which private property may be taken. (Thurlock Irr. Dist. v. Williams, 76 Cal. 360, 18 Pac. 379; Central Irr. Dist. v. De Lapne, 79 Cal. 351, 21 Pac. 825; Crall v. Poso Irr. Dist., 87 Cal. 140, 26 Pac. 797.) The legislature is the sole judge of the public necessity or advantage of a proposed improvement as a public use. (Gilmer v. Lime Point, 18 Cal. 229.)

The words "public use" mean a use which concerns the whole community, as distinguished from a particular individual or a particular number of individuals. But it is not necessary that each and every individual member of society should have the same degree of interest in this use, or be personally or directly affected by it, in order to make it public. (Gilmer v. Lime Point, 18 Cal. 229.)

To condemn land within the state for a United States fort or other military or naval purpose is to condemn land for a public use. (Gilmer v. Lime Point, 18 Cal. 229.)

The only test of the admissibility of the power of the state to condemn land for "public use" is that the particular object for which the land is condemned tends to promote the general interest, in its relation to any legitimate object of government. (Gilmer v. Lime Point, 18 Cal. 229.)

The "public use" is left in large measure to legislative determination; and the legislative resolve, by which a tax is imposed or private property taken, is such legislative determination. (Stockton etc. R. R. Co. v. Stockton, 41 Cal. 147; Contra Costa etc. Co. v. Moss, 23 Cal. 323.)

But the legislative determination that a certain business is a public use is not conclusive of its character. (Consolidated Channel Co. v. Central Pac. R. R. Co., 51 Cal. 269.)

A railroad for the transportation of passengers and freight is a public use. (San Francisco etc. R. R. Co. v. Caldwell, 31 Cal. 367; Contra Costa etc. Co. v. Moss, 23 Cal. 323; Stockton etc. R. R. Co. v. Stockton, 41 Cal. 147; Napa Valley R. R. Co. v. Napa, 30 Cal. 435.)

Private use. The legislature cannot take private property for a private use, and it must declare the purpose to be one of public necessity or convenience. (Nickey v. Stearns Ranchos Co., 126 Cal. 150, 58 Pac. 459; Consolidated Channel Co. v. Central Pac. R. R. Co., 51 Cal. 269; Brenham v. Story, 39 Cal. 179; Sherman v. Buick, 32 Cal. 241.)

Thus an act permitting a person to build a flume on the land of another to carry off the tailings from

his mine is void. (Consolidated Channel Co. v. Central Pac. R. R. Co., 51 Cal. 269.)

Also an act giving a right to miners to enter upon private property, where no such right existed anterior to its passage. (Gillan v. Hutchinson, 16 Cal. 153.)

Also an act authorizing an administrator to sell real property belonging to the estate of his decedent, who died before the passage of the act, except in satisfaction of the liens of creditors, for the support of the family, or to pay the expenses of administration. (Brenham v. Story, 39 Cal. 179.)

The legislature has power to open so-called "private roads," from main roads to the residences or farms of individuals. The fact that they are called "private" is immaterial, since all roads are public. (Sherman v. Buick, 32 Cal. 241.)

Damaged. The provision of this section against property being damaged for public use is not found in the constitution of 1849. As to the meaning of the word "damaged" as used in this section, see Reardon v. San Francisco, 66 Cal. 492, 501-506, 6 Pac. 317.

A mere infringement of the owner's personal pleasure or enjoyment, or merely rendering the property less desirable for certain purposes, or even causing personal annoyance and discomfort, does not constitute a damage within the meaning of this section. (Eachus v. Los Angeles etc. Ry. Co., 103 Cal. 614, 37 Pac. 750.)

Digging and maintaining ditches and drains across private lands is a taking of property. (Nickey v. Stearns Ranchos Co., 126 Cal. 150, 58 Pac. 459.)

Where the damage is not the natural, certain, and immediate consequence of an improvement, compensation need not be made in advance. (De Baker v. Railway Co., 106 Cal. 257, 39 Pac. 610.)

Streets. A city is liable for damages caused the owner of an abutting lot by excavating the street in front thereof, in pursuance of a contract let by the city for that purpose. (Eachus v. Los Angeles, 130 Cal. 492, 62 Pac. 829; Reardon v. San Francisco, 66 Cal. 492, 6 Pac. 317.)

Damages caused by the raising of a street to the official grade cannot be pleaded as a defense to an action brought to foreclose the lien for improving the street. (Hornung v. McCarthy, 126 Cal. 17, 58 Pac. 303.)

An owner of land abutting upon a street is entitled to compensation for any injury to his property, which he sustains over and above that sustained in common with other abutting owners, resulting from a change in the grade of the street. (Eachus v. Los Angeles Ry. Co., 103 Cal. 614, 37 Pac. 750; Jennings v. Le Roy, 63 Cal. 397.)

But a city is not responsible for the unauthorized act of its officers in raising the grade of a street and thus damaging adjoining property. (Sievers v. San Francisco, 115 Cal. 648, 47 Pac. 687.)

To change the channel of a natural watercourse so as to increase the flow of water in another watercourse, to the injury of adjoining lands, is a violation of this section. (Rudel v. Los Angeles, 118 Cal. 281, 50 Pac. 400; Conniff v. San Francisco, 67 Cal. 45, 7 Pac. 41; Tyler v. Tehama Co., 109 Cal. 618, 42 Pac. 240. But see Green v. Swift, 47 Cal. 536; Larrabee v. Cloverdale, 131 Cal. 96.)

A municipal corporation is liable for damages caused by the construction of sewers, etc., in such a manner that the surface water of a large territory, which did not naturally flow in that direction, is gathered into a body and precipitated upon private property. (Stanford v. San Francisco, 111 Cal. 198, 43 Pac. 605.)

But a municipal corporation is not liable for damages caused by the prevention of the flow of surface water from the lot of a private owner, by reason of the raising of a street to the grade established by law, where such surface water does not run in a natural channel across the lot. (Corcoran v. Benicia, 96 Cal. 1, 30 Pac. 798; Lampe v. San Francisco, 124 Cal. 546, 57 Pac. 461.)

A statute exempting a municipal corporation from liability for damages for injuries sustained by any person on its graded streets, but making the officers of the city liable therefor, is valid. (Parsons v. San Francisco, 23 Cal. 462.)

A contractor of the city is not liable under this provision for damage to private property caused by a public improvement. (De Baker v. Railway Co., 106 Cal. 257, 39 Pac. 610.)

Procedure.-Section 1254 of the Code of Civil Procedure, in regard to proceedings for the condemnation of property for public use, allowing an adequate fund to be paid into court, whereupon the court may authorize the plaintiff to take possession of the property until the final determination of the litigation, is not inconsistent with this section. (Spring Valley W. W. v. Drinkhouse, 95 Cal. 220, 30 Pac. 218.)

But a statute allowing the plaintiff to take possession upon the filing of a bond is void. (Vilhac v. Stockton etc. R. R. Co., 53 Cal. 208; San Mateo W. W. v. Sharpstein, 50 Cal. 284; Sanborn v. Belden, 51 Cal. 266. But see Fox v. Western etc. R. R. Co., 31 Cal. 538.)

This provision contemplates and provides for a proceeding in court in all cases where private property is taken for a public use, and prohibits any other proceeding to that end; and the owner is entitled to a jury trial for the purpose of ascertaining the damages. (Weber v. Santa Clara Co., 59 Cal. 265; Trahern v. San Joaquin Co., 59 Cal. 320.) The means of compensation must be provided before the property is taken. (McCauley v. Weller, 12 Cal. 500.)

If failure be made in paying or providing such compensation, the party may retake possession of the property. (Colton v. Rossi, 9 Cal. 595.)

The state may select its own agents and agencies in exercising the power of eminent domain, and may select foreign corporations or governments. (Gilmer v. Lime Point, 18 Cal. 229.)

The provision for just compensation only requires that a certain and adequate remedy be provided by which the owner can obtain his compensation without unreasonable delay; and a law providing for a jury to determine the value, that the money be paid into the county treasury for the owner, to be paid to him when his ownership is ascertained, is valid. (Gilmer v. Lime Point, 18 Cal. 229.)

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