At the same session another § 1238 was adopted, as follows: Right of domain. Public uses enumerated.

§ 1238. Subject to the provisions of this title, the right of eminent domain may be exercised in behalf of the following public uses:

1. Fortifications, magazines, arsenals, navy-yards, navy and army stations, lighthouses, range and beacon lights, coast surveys, and all other public uses authorized by the government of the United States.

2. Public buildings and grounds for the use of the state and all other public uses authorized by the legislature of the state.

3. Public buildings and grounds for the use of any county, incorporated city, or city and county, village, town or school districts; ponds, lakes, canals, aqueducts, reservoirs, tunnels, flumes, ditches or pipes for conducting or storing water for the use of the inhabitants of any county, incorporated city, or city and county, village or town, or for draining any county, incorporated city, or city and county, village or town; raising the banks of streams, removing obstructions therefrom, and widening and deepening or straightening their channels; roads, streets and alleys; public mooring places for water craft; public parks, including parks and other places covered by water, and all other public uses for the benefit of any county, incorporated city, or city and county, village or town, or the inhabitants thereof, which may be authorized by the legislature; but the mode of apportioning and collecting the costs of such improvements shall be such as may be provided in the statutes by which the same may be authorized.

4. Wharves, docks, piers, chutes, booms, ferries, bridges, toll roads, by-roads, plank, and turnpike roads; paths and roads either on the surface, elevated, or depressed, for the use of bicycles, tricycles, motorcycles and other horseless vehicles, steam, electric, and horse railroads, canals, ditches, dams, poundings, flumes, aqueducts and pipes for irrigation, public transportation, supplying mines and farming in neighborhoods with water, and draining and reclaiming lands, and for floating logs and lumber on streams not navigable.

5. Roads, tunnels, ditches, flumes, pipes and dumping places for working mines; also outlets, natural or otherwise, for the flow, deposit, or conduct of tailings or refuse matter from mines; also an occupancy in common by the owners or possessors of different mines of any place for the flow, deposit, or conduct of tailings or refuse matter from their several mines.

6. By-roads leading from highways to residences, farms, mines, mills, factories and buildings for operating machinery, or necessary to reach any property used for public purposes.

7. Telegraph and telephone lines.

8. Sewerage of any incorporated city, city and county, or of any village or town, whether incorporated or unincorporated, or of any settlement consisting of not less than ten families, or of any buildings belonging to the state, or to any college or university; also the counection of private residences and other buildings, through other prop

erty, with the mains of an established sewer system in any such city, eity and county, town or village.

9. Roads for transportation by traction engines or road locomotives. 10. Oil pipe-lines.

11. Roads and flumes for logging or lumbering purposes.

12. Canals, reservoirs, dams, ditches, flumes, aqueducts and pipes and outlets natural or otherwise for supplying, storing, and discharging water for the operation of machinery for the purpose of generating and transmitting electricity for the supply of mines, quarries, railroads, tramways, mills, and factories with electric power; and also for the applying of electricity to light or heat mines, quarries, mills, factories, incorporated cities and counties, villages or towns; and also for furnishing electricity for lighting, heating or power purposes to individuals or corporations, together with lands, buildings and all other improvements in or upon which to erect, install, place, use or operate machinery for the purpose of generating and transmitting electricity for any of the purposes or uses above set forth.

13. Electric power lines, electric heat lines, and electric light, heat and power lines.

14. Cemeteries for the burial of the dead, and enlarging and adding to the same and the grounds thereof.

15. The plants, or any part thereof or any record therein, of all persons, firms or corporations heretofore, now or hereafter engaged in the business of searching public records, or publishing public records or insuring or guaranteeing titles to real property, including all copies of, and all abstracts or memoranda taken from, public records, which are owned by, or in the possession of such persons, firms or corporations, or which are used by them in their respective business; provided, however, that the right of eminent domain in behalf of the public uses mentioned in this subdivision may be exercised only for the purpose of restoring or replacing, in whole or in part, public records, or the substance of public records, of any city, city and county, county or other municipality, which records have been, or may hereafter be, lost or destroyed by conflagration or other public calamity; and provided, further, that such right shall be exercised only by the city, city and county, county or municipality, whose records, or part of whose records, have been, or may be, so lost or destroyed.

16. Expositions or fairs in aid of which the granting of public moneys or other thing of value has been authorized by the constitution. [Amendment approved March 22, 1911; Stats. 1911, p. 431.]

Citations. Cal. 157/76. App. 13/409, 410, 411, 412, 418, 419, 422, 501; (subd. 3) 13/411; (subd. 12) 13/408, 409, 418, 419, 422, 501; (subd. 13) 13/408, 409, 419, 422, 501.

At the same session another § 1238 was adopted. See ante, p. 39.

Estates subject to public use.

§ 1239. The following is a classification of the estates and rights in lands subject to be taken for public use:

1. A fee simple, when taken for public buildings or grounds, or for permanent buildings, for reservoirs and dams, and permanent flooding occasioned thereby, or for an outlet for a flow, or a place for the deposit of debris or tailings of a mine.

2. An easement, when taken for any other use, provided, however, that when the taking is by a municipal corporation, and is for the purpose of constructing, equipping, using, maintaining or operating any works, road, railroad, tramway, power plant, telephone line, or other necessary works or structures, for the preparation, manufacture, handling or transporting of any material or supplies required in the construction or completion by such municipal corporation of any public work, improvement, or utility, a fee simple may be taken if the legislative body of such municipal corporation shall, by resolution, determine the taking thereof to be necessary.

3. The right of entry upon and occupation of lands, and the right to take therefrom such earth, gravel, stones, trees, and timber as may be necessary for some public use. [Amendment approved April 5, 1911; Stats. 1911, p. 618.]

Citations. App. 13/420, 423.

Private property which may be taken for public use.

§ 1240. The private property which may be taken under this title includes:

1. All real property belonging to any person;

2. Lands belonging to this state, including tide and submerged lands, not within the corporate limits of any city, or city and county, or to any county, incorporated city, or city and county, village or town, not appropriated to some public use;

3. Lands belonging to the United States or owned or held by the United States in trust, or otherwise, for any purpose, except lands owned or held for lighthouses, postoffices or other government buildings, forts, arsenals, or other military purposes;

4. Property appropriated to public use; but such property shall not be taken unless for a more necessary public use than that to which it has already been appropriated; provided, that where any such property has been so appropriated by any individual, firm or private corporation, the use thereof for a public street or highway of a municipal corporation, or the use thereof by a municipal corporation for the same public pur. pose to which it has been so appropriated, shall be deemed more necessary uses than the public use to which such property has been already appropriated; and provided, further, that where property already appropriated to a public use or purpose, by any person, firm or private corporation, is sought to be taken by a municipal corporation, for another public use or purpose, which is consistent with the continuance of the use of such property or some portion thereof for such existing purpose, to the same extent as such property is then used, or to a less or modified extent, then the right to use such property for such proposed public

purpose, in common with such other use or purpose, either as then existing, or to a less or modified extent, may be taken by such municipal corporation, and the court may fix the terms and conditions upon which such property may be so taken, and the manner and extent of the use thereof for each of such public purposes, and may order the removal or relocation of any structures or improvements therein or thereon, so far as may be required by such common use.

5. Franchises for toll roads, toll-bridges, and ferries, and all other franchises; but such franchises shall not be taken unless for free highways, railroads, or other more necessary public use;

6. All rights of way for any and all the purposes mentioned in section 1238, and any and all structures and improvements on, over, across or along such rights of way, and the lands held or used in connection therewith shall be subject to be connected with, crossed, or intersected by or embraced within any other right of way or improvements, or structures thereon. They shall also be subject to a limited use, in common with the owner thereof, when necessary; but such uses, crossings, intersections, and connections shall be made in manner most compatible with the greatest public benefit and least private injury;

No railroad main track crossing, outside the limits of any incorporated town, city or city and county, shall be at grade, unless the party proposing such crossing at grade shall, at its own sole cost and expense, protect such crossing by the construction, operation and maintenance of an interlocking plant, with suitable signals and derails; but either party to such crossing may insist upon a separation of grades, in which case the cost of constructing such crossing with separate grades shall be equally divided between the railroad companies concerned; and provided, further, that where any such crossing has been constructed at grade, either company may, at any time thereafter, require a separation of the grades at such crossing, each company paying one-half of the expense of such separation; and provided, further, that the foregoing provisions shall not be construed as requiring a separation of grades where such - separation is physically impracticable, and in case of any dispute or controversy as to the physical practicability of any undergrade or overhead crossing, the same shall be determined by the superior court of the county in which such crossing is situate in an action or proceeding brought by either party for that purpose;

7. All classes of private property not enumerated may be taken for public use, when such taking is authorized by law;

8. Proceedings to condemn lands belonging to this state are hereby authorized, and must be maintained and conducted in the same manner as are other condemnation proceedings provided for in this title; except, that in such proceedings the summons and a copy of the complaint must be served on the governor, attorney general, and surveyor general of this state;

9. Proceedings to condemn any of said lands belonging to the United States or owned or held by the United States in trust, or otherwise, for

any purpose, are hereby authorized; and must be maintained and conducted in the same manner as are other condemnation proceedings provided for in this title; except, that in such proceedings, the summons and a copy of the complaint must be served on the United States district attorney for the district in which the land sought to be condemned is situated and also upon the United States surveyor general for this state. [Amendment approved April 5, 1911; Stats. 1911, p. 620.]

At the same session another § 1240 was adopted, as follows: Private property that may be taken.

§ 1240. The private property which may be taken under this title includes:

1. All real property belonging to any person;

2. Lands belonging to this state, including tide and submerged lands, not within the corporate limits of any city, or city and county, or to any county, incorporated city, or city and county, village or town, not appropriated to some public use;

3. Lands belonging to the United States or owned or held by the United States in trust, or otherwise, for any purpose, except lands owned or held for lighthouses, postoffices or other government buildings, forts, arsenals, or other military purposes;

4. Property appropriated to public use; but such property shall not be taken unless for a more necessary public use than that to which it has been already appropriated; provided, that property owned by any person, firm or private corporation may be taken by a municipal corporation for the purpose of supplying water to such corporation or the inhabitants thereof, and such use by any municipal corporation shall be held to be a more necessary use than by a person, firm or private corporation;

5. Franchises for toll roads, toll-bridges, and ferries, and all other franchises; but such franchises shall not be taken unless for free highways, railroads, or other more necessary public use;

6. All rights of way for any and all the purposes mentioned in section 1238, and any and all structures and improvements thereon, and the lands held or used in connection therewith shall be subject to be connected with, crossed, or intersected by any other right of way or improvements, or structures thereon. They shall also be subject to a limited use, in common with the owner thereof, when necessary; but such uses, crossings, intersections, and connections shall be made in manner most compatible with the greatest public benefit and least private injury;

No railroad main track crossing, outside the limits of any incorporated town, city or city and county, shall be at grade, unless the party proposing such crossing at grade shall, at its own sole cost and expense, protect such crossing by the construction, operation and maintenance of an interlocking plant, with suitable signals and derails; but either party to such crossing may insist upon a separation of grades, in which case the cost of constructing such crossing with separate grades shall be equally divided between the railroad companies concerned; and provided,