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 nccessary 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,

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 March 4, 1911; Stats. 1911, p. 280.]

At the same session another § 1240 was adopted. See ante, p. 44.

Citations. App. 13/409, 410, 411, 420, 421, 423; (subd. 1) 13/421; (subd. 6) 13/424; (subd. 7) 13/421, 422.

Facts to be found before condemnation.

§ 1241. Before property can be taken, it must appear:

1. That the use to which it is to be applied is a use authorized by law; 2. That the taking is necessary to such use;

3. If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use; provided, that where 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 purpose 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, [Amendment approved April 5, 1911; Stats. 1911, p. 620.]

At the same session another § 1241 was adopted, as follows:

Before property may be taken, what necessary.

§ 1241. Before property can be taken, it must appear:

1. That the use to which it is to be applied is a use authorized by law;

2. That the taking is necessary to such use;

3. If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use; 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 municipal 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. [Amendment approved March 4,

1911; Stats. 1911, p. 280.]

At the same session another § 1241 was adopted. See ante, p. 47.
Citations. App. 18/407, 420, 421, 501.

§ 1242.

Citations. App. 13/505.

§ 1244.

Citations. App. 13/502; 14/789; (subd. 5) 14/789.

Court may regulate removing structures.

§ 1247a. The court shall also have power to regulate and determine the place and manner of removing or relocating structures or improvements, or of enjoying the common use mentioned in the fourth subdivision of section 1240. [New section approved April 5, 1911; Stats.

1911, p. 622.]

Court or jury to assess damages.

§ 1248. The court, jury, or referee must hear such legal testimony as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess:

1. The value of the property sought to be condemned, and all improvements thereon pertaining to the realty, and of each and every separate estate or interest therein; if it consists of different parcels, the value of each parcel and each estate or interest therein shall be separately assessed;

2. If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned, by reason of its severance from the portion sought to be condemned, and the construction of the improvement in the manner proposed by the plaintiff;

3. Separately, how much the portion not sought to be condemned, and each estate or interest therein, will be benefited, if at all, by the construction of the improvement proposed by the plaintiff; and if the benefit shall be equal to the damages assessed under subdivision 2, the owner of the parcel shall be allowed no compensation except the value of the portion taken; but if the benefit shall be less than the damages so assessed, the former shall be deducted from the latter, and the remainder shall be the only damages allowed in addition to the value;