City of Santa Rosa v. Fountain Water Co.

This is a proceeding, in the superior court of the county of Sonoma, under title YII of part III of the Code of Civil Procedure to condemn land situate in said county, the property of the corporation defendant. The appeal is from an order denying the motion of the defendants to change the place of trial to the city and county of San Francisco,— the grounds of the motion being “that the residence of both defendants, . . . and the principal place of business and the place of incorporation of defendant Fountain Water Company is in [that] city and county.”

The motion, we think, was rightly denied. By section 1243 of the Code of Civil Procedure it-is provided that all proceedings of this kind “must be brought in the superior court of the county in which the property is situated”; and this implies that it must also be tried there, unless transferred by the court to another county, as required or authorized by the provisions of section 394 of the Code of Civil Procedure. (California S. R. R. Co. v. Southern Pacific R. R. Co., 65 Cal. 395 , 410; Colin v. Central Pacific R. R. Co., 71 Cal. 490 .) The cases in 65 Cal. were both proceedings to condemn land, and in each the motion for change of venue was made on the ground that the principal place of business of the corporation, and therefore the residence of the defendant, was in another county. In both eases the decision was placed on the ground that the provisions of section 1243 of the Code of Civil Procedure was determinative of the question involved. In the former decision the opinion was also expressed that the place of business of a corporation was not its place of residence, thus overruling the decision in Jenkins v. California Stage Co., 22 Cal. 537 . But in the second case this ground of decision was omitted from the decision, and in the third expressly overruled. The cases are therefore to be regarded as resting exclusively on the ground that, under the provisions of section 1243 of the Code of Civil Procedure, the county where the real estate is situated is “the proper county for the commencement of the action, and for its trial”; which was in effect to hold that the provisions of section 395 of the Code of Civil Procedure, referring to “actions” generally, had no application to “special proceedings” of this character.

This indeed seems to be admitted by the appellants’ counsel, but it is claimed that the case comes within the proviso

We advise that the order appealed from be affirmed.

Gray, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the order appealed from is affirmed.

McFarland, J., Van Dyke, J., Lorigan, J.

Hearing in Bank denied.

I dissent from the order denying a rehearing of this cause and from the decision of the court.

The decision rests upon the ground that section 394 applies only to actions as contradistinguished from special proceedings, such as the proceeding under sections 1237 of the Code of Civil Procedure et seq. to condemn lands. But no notice is taken of section 1256 of that title, which expressly provides that “Except as otherwise provided in this title, the provisions of part II of this code are applicable to and constitute the rules of practice in the proceedings mentioned in this title.” Section 394 is one of the provisions of part II of the Code of Civil Procedure, and therefore constitutes one of the rules of practice in eminent domain, unless it is in conflict with the special provisions of that title. I find no such conflict. The general rule that proceedings to condemn must be commenced in the county where the property is situated is in no wise impaired by giving effect to the special and exceptional provision that when such a proceeding has been commenced by a county or city against citizens of another county the proceeding must, on demand of the defendants, be transferred to a county other than the plaintiff county, or the county where the plaintiff—if a city—is situated. (Code Civ. Proe., sec. 394.) If sections 394 and 1243 were in the same title, there could be no doubt of this construction, and section 1256 has the effect of bringing them, for the purpose of construction, into the same title—“Eminent Domain. ’ ’

The reasons upon which the proviso in section 394 rests demand this construction. Its purpose is to relieve defendants in actions by cities and counties of the disadvantages of local bias on the part of citizens and taxpayers of the county or city plaintiff; and this reason applies with the same force to proceedings to condemn as to actions of any character.