crop was partly cut and partly uncut, and while in the act of harvesting, the sheriff executed the writ, removed him from possession, and placed the plaintiff in possession of the land and crop; therefore, he asked restitution of the premises for the purpose of harvesting the crop. But, having entered as mortgagee of the defendant pendente lite, he was bound by the judgment and removable by the writ; and as he was in fact removed, and the plaintiff was put in possession, the latter was lawfully in possession, not only of the land described in the writ, but of all fixtures and improvements attached to the premises, and to all crops growing or standing thereon. For some purposes growing crops are regarded as personal property; but, as between the successful plaintiff in an action of ejectment and the evicted defendant, they are part of the realty. Ad. Ej. 347; Brothers v. Hurdle, 10 Ired. Law, 490; King v. Fowler, 14 Pick. 238; Strode v. Swim, 1 A. K. Marsh. 366. How much, if any portion, of the crop had been made chattel by a severance from the soil does not appear, for no testimony upon the subject was offered or given. If he had any right to chattel property wrongfully taken or detained by the sheriff, the plaintiff, or his agent, he had legal remedies of which he could have availed himself to recover the possession or value thereof; but he had no legal right to a restitution of the premises for the purpose of harvesting the crop.

An order of the court, of its own motion, setting aside a verdict, is the equivalent of an order granting a new trial, and is reviewable upon a statement on appeal; but, being a matter within the legal discretion of the trial court, this court will not interfere with it unless abuse of discretion is shown.

Where the uncontradicted evidence in a suit for malicious prosecution tends to show probable cause, and the verdict of the jury is against the instructions of the court, we cannot hold that there was an abuse of discretion in setting it aside.

Department 1.

A. E. Castello, W. H. Allen, and Geo. W. Lewis, for appellant and plaintiff.

Vrooman & Davis, for respondent.

MCKEE, J. The case in hand arises out of an action for malicious, prosecution. There was a verdict for the plaintiff for $5,000 dam

ages, which the court, of its own motion set aside under section 622, Code Civil Proc. By the provisions of that section a court is authorized of its own motion, to set aside a verdict "when there has been such a plain disregard by the jury of the instructions of the court, or the evidence in the case, as to satisfy the court that the verdict was rendered under a misapprehension of the instructions, or under the influence of passion or prejudice." The order made in the exercise of that power is reviewable, upon a statement on appeal, in the same manner as an order made on motion for a new trial. An order ex mero motu, vacating a verdict, is therefore the equivalent of an order granting a new trial; and, as either is a matter within the legal discretion of the court that makes the order, this court will not interfere with it unless the circumstances of the case, and the principle of law applicable to them, show that there has been an abuse of discretion. It appears by the order entered that the verdict was set aside because it "was not supported by the evidence given on the trial," and because it "was contrary to the instructions of the court given to the jury." Either of these was good ground for setting the verdict aside, and the presumption is in favor of the ruling of the court.

The controlling questions in the case were the existence of malice in the prosecutor, and want of probable cause for the prosecution complained of. It was necessary for the plaintiff to prove each of these things in order to recover. But the primary question was, whether the prosecution was with or without probable cause. Grant v. Moore, 29 Cal. 644. That was a mixed question of law and fact: of fact, for the jury, if there was a conflict of evidence, under proper instructions by the court; and of law, for the court, if the underlying facts were admitted or uncontroverted. Potter v. Seal, 8 Cal. 217; Harkrader v. Moore, 44 Cal. 144; Anderson v. Coleman, 53 Cal. 188.

To

To prove a want of probable cause, it appears, by the statement on appeal, the plaintiff gave proof of the circumstances of the prosecution, of her arrest and imprisonment under it for five days, and of the dismissal of the charge against her on motion of the district attorney; and in giving testimony in her own behalf she stated, "There was no foundation in fact for the charge made against me." rebut that evidence the defendant called a witness who gave testimony tending to prove the truth of the charge, and that she had given to defendant information of all the facts within her knowledge as to the truth of it. Her statements the defendant testified he believed, and that believing them he fully and fairly laid them, “just as the witness told him," before his own counsel and the district attorney of the county; and that, acting under the advice of his counsel, he had the plaintiff arrested for the offense complained of, and appeared in court to testify against her; but the district attorney dismissed the case, without his procurement or consent, and without the examination of any witnesses. This testimony of the defendant appears to have been uncontroverted, and with reference to it the court

instructed the jury that if the defendant, from the information given to him, believed that the plaintiff was threatening, or about to commit, a crime against him, "and, acting upon that belief, consulted his counsel, and his counsel advised him that it was a crime, and that he might and ought to have her arrested, and if, acting on that advice, and upon his belief that she was the person, he caused this warrant to be issued and this arrest to be made, then if you find these facts to be true, that would in law constitute probable cause." That was the law of the question, (Harkrader v. Moore, supra; Anderson v. Coleman, supra,) and the jurors were bound to take it as the law from the court and apply it to the facts in the case. If the defendant had probable cause the plaintiff was not entitled to recover, and as the verdict appeared to the court contrary to its instruction, we are not prepared to say there was error or abuse of discretion in setting it aside ex mero motu. It is the duty of a court to set aside a perverse verdict.

Order affirined.

We concur in the judgment: MCKINSTRY, J.; Ross, J.

(2 Cal. Unrep. 244)

CALIFORNIA SOUTHERN R. Co. v. COLTON LAND & WATER Co.

Filed January 19, 1884

The averments herein show sufficiently that the defendant was properly named, and was the known owner and claimant of the land sought to be condemned. A demurrer, therefore, on the ground that these facts did not appear, as required, was properly overruled.

The compensation for land taken under condemnation proceedings is the value of it at the time of trial, and not at the date of the summons, as prescribed in section 1249, Code Civil Proc.

Department 1.

Byron Waters and H. E. Cooper, for plaintiff and respondent.

J. A. Gibson and J. O. Bethune, for defendant and appellant.

MCKEE, J. It is contended that the court below erred (1) in overruling the demurrer to the complaint in the proceeding; and (2) in excluding evidence, offered by the defendant, to prove the value of the land in controversy at the time of the trial. The object of the proceeding was condemnation of a strip of land for the right of way for a railroad. By a general demurrer the defendant objected that the complaint did not contain facts sufficient to entitle the plaintiff to exercise the right of eminent domain, because, as was urged

on the argument, it did not contain "the names of all owners and claimants of the property, if known, or a statement that they were. unknown," as required by subdivision 2, § 1244, Code Civil Proc. But the complaint contains the name of the defendant as a corporation duly organized and acting under the laws of the state of California, and the following allegations: "That plaintiff is constructing a railroad from the said National City northward to a connection with the railroad of the Atlantic & Pacific Railroad Company at or near the thirty-fifth parallel of north latitude, in the state of California; that in the construction, maintenance, and operation of its railroad the plaintiff needs, and by this action seeks to acquire, a right of way one hundred feet in width, through the lands of the defendant; said right of way being more particularly described as follows: Being a strip of land one hundred feet in width, located and included. between lines on each side of, parallel to, and fifty feet distant from the center line of location of plaintiff's railroad, as the same is located through the lands of the defendant; said center line being located as follows," etc. These averments sufficiently show that the defendant was properly named, and that it was the known owner and claimant of the land which plaintiff sought to condemn for the right of way in the construction of its road. There was, therefore, no error in overruling the demurrer.

Under section 1248, Code Civil Proc., testimony was taken in the proceeding on June 23, 1883,-more than five months after the date of the summons issued in the proceeding. At the taking of testimony the defendant offered to prove, by witnesses then present, the value of the land proposed to be condemned at that time. To this offer plaintiff's counsel objected, on the ground that the date of the summons was the date at which the value must be estimated. The court sustained the objection, and, on submitting the case to the jury, at plaintiff's request instructed the jury as follows: "The jury are instructed that the actual market value of the property sought to be condemned on the day of issuing the summons, (which in this case. was the fourth day of January, 1883,) is the amount of compensation to be assessed for the property to be taken, irrespective of prospective or speculative value." The rulings of the court were doubtless based upon section 1249, Code Civil Proc. That section declares that, "for the purpose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the summons, and its actual value at that date shall be the measure of compensation for all property to be actually taken, and the basis of damages to property not actually taken but injuriously affected," etc. But by the constitution of 1879 it is provided that "private property shall not be taken for public use without just compensation having been first made to, or paid into court for, the owner; and no right of way shall be appropriated to the use of any corporation, other than municipal, until full compensation be first made in money, or

*

ascertained and paid into court for the owner." Const.

Section 14, art. 1,

Ascertainment of compensation for land proposed to be taken for public use, or "appropriated for a right of way," is therefore the constitutional rule. The assessment of such compensation is concomitant with the right to take, and payment of the sum assessed, with the actual taking or appropriation. Upon assessment being made according to law, the right to take may be exercised. Then the obligation to pay arises, and must be performed within 30 days after the date of the assessment, else the proceeding is annullable, (section 1252, Code Civil Proc.,) and upon payment the property of the owner passes to the public use. One of the principal objects of condemnatory proceedings is the ascertainment and assessment of such compensation; and the chief element in the compensation is the value of the land required by the public necessity. Upon proof of that necessity, the value, according to the constitutional requirement, must be ascertained at the time of making the assessment, for up to the moment of making the assessment the land, or its equivalent value, belongs to the owner; and it is not subject to be taken for public use until the compensation has been first made; the owner is therefore entitled to receive its market value at that time. "The fact to be ascertained," said the late supreme court, in S. & C. R. Co. v. Galgiani, 49 Cal. 139, "is the value of the land at the time of the taking." And Mr. Justice SANDERSON says, in Fox v. W. P. R. Co. 31 Cal. 556, "it cannot be said in any legal sense that the land has been taken until the act has transpired which divests the title or subjects the land to the servitude. So long as the title remains in the individual, or the land remains unchanged by the servitude, there can have been no taking." "It is a mistake to suppose," says Mr. Justice BALDWIN, in Bensley v. Mountain Lake Water Co. 13 Cal. 317, "that any title comes from mere appropriation of another's property, or from the taking of the legal proceeding to condemn it. The constitution is express. Private property shall not be taken for public use without compensation. The compensation precedes the title. The compen

sation must be adequate. But adequate, when? Of course, when the property is so taken." See, also, S. F. & S. J. R. Co. v. Mahoney, 29 Cal. 112, and C. P. R. Co. v. Pearson, No. 2,654, not reported. The court below erred in excluding the evidence as to the value of the land at the time of the trial.

Judgment and order reversed, and cause remanded for further proceedings.

We concur: MCKINSTRY, J; Ross, J.