Appeal from the Fourth District.

December 5th, 1860, the San Francisco Water Works Company filed a petition with the Judge of the county of San Francisco, addressed to said Judge, alleging in substance that petitioners are a corporation duly organized under the laws of this State, and particularly under and in conformity to “ An Act to Provide for the Formation of Corporations for Certain Purposes,” passed April 14th, 1853, and amended by an Act of April 30th, 1855, and under an act passed April 22d, 1858, entitled “An Act for the Incorporation of Water Companies;” that said corporation was organized as aforesaid for the purpose of introducing pure fresh water into the city and county of San Francisco for supplying the inhabitants thereof and the public buildings therein with the same, and to do and transact such other business properly relating to gaid purpose as might be necessary; that the incorporation of said company was effected by three persons, citizens of said State, who in that behalf on the thirteenth day of June, 1857, filed in the office of the County Clerk of the city and county of San Francisco, a certificate in writing, etc., [here follow a particular account of the steps taken to incorporate, and the contents of the certificate] that said corporation, after its organization as aforesaid, was duly licensed by an order of the Board of Supervisors of said city, and county, approved August 6th, 1857, to introduce water for the purposes aforesaid from the “ Lobos creek,” so called, which order, known as order No. 46, is made part of the petition; that upon the passage of said order petitioners, as such corporation, at once entered upon the prosecution of their said enterprise, and thence hitherto have continuously and regularly prosecuted the same; that said order was approved and ratified, and the existence of said corporation recognized by an Act of the Legislature of March 18th, 1858, entitled “An Act for the Incorporation of Water Companies,” and that the existence of said corporation was also recognized by an Act passed April 12th, 1860, entitled “ An Act to Ratify and Confirm Order No. 172 of the Board of Supervisors of the City and County of San Francisco,” to all of which acts and orders reference is made; that to promote and acccomplish the corporate purpose and object set forth as aforesaid, it was requisite and necessary that the said corporation should secure to itself and acquire the right to excavate and maintain an underground tunnel for the purpose of laying down and maintaining therein two lines of iron pipe, with a right of way into, through and out of said tunnel for the purpose aforesaid; the position and dimensions of said tunnel and the lands through which the same is to pass are described as follows, to wit: [a particular description of certain land in the city of San Francisco is here given] ; that it was requisite and necessary to a fulfillment of the corporate objects of the petitioners, that the corporation should hold, use and take possession of and appropriate so much of the lands aforesaid as might be needful for the construction of said tunnel, and to vest in them the right of way to the extent of said tunnel; that the lot belongs to Leonard D. Heyneman, resident in said city; that there are of record, or to the knowledge of petitioners, no incumbrances on said lot. Prayer that Commissioners be appointed to ascertain the compensation to be made to the owner for taking or injuriously affecting said lands, and that the lands, to the extent hereinbefore stated, may be condemned to the uses of the corporation.

Notice was served upon Heyneman, that on the eleventh of December, 1860, petitioners would apply to the County Judge for the appointment of Commissioners, as prayed for in the petition. On the seventeenth of December, to which day the hearing was adjourned by consent, Heyneman, by counsel, objected to granting the prayer of the petition, upon the ground that the matters therein et forth were not sufficient in law. Objection overruled.

Petitioners then put in evidence: first, the several acts of the Legislature referred to in the petition; second, copies of the certificate of incorporation of the company from the County Clerk’s office, and from the office-of the Secretary of State ; third, orders of the Board of Supervisors Nos. 46 and 172 referred to; fourth, certificate of the incorporation of the water company, dated May 14th, 1858, filed in County Clerk’s office of San Francisco same day.

Petitioners then introduced witnesses to prove that they had been acting as a corporation, and laying down pipes in San Francisco, and constructing reservoirs, etc., for the past two and a half years; that the lands sought to be condemned are necessary for the purposes of the company, and have not been acquired by the company by gift, purchase or otherwise; that an effort had been made by the company to purchase of Heyneman the rights named in the petition, but that they could not agree, and that the title to the land stood on the record in Heyneman’s name.

It was then admitted that he was the owner.

Counsel of Heyneman then moved to dismiss the petition upon the evidence offered. Overruled, and exceptions taken. He then asked a stay of proceedings, to enable him to apply for certiorari. Refused. Whereupon the County Judge appointed five Commissioners, “ to ascertain the compensation to be made to Leonard Heyneman by the said San Francisco City Water Works for the taking or injuriously affecting the lands, real estate, property and rights set forth in the aforesaid petition,” and appointed a day and place for the first meeting of the Commissioners.

Heyneman then applied to the Fourth District Court for a writ of certiorari, to review the proceedings had before the County Judge—the petition for the writ setting forth those proceedings, and averring mainly that the Judge had exceeded his jurisdiction, because, first, the Water Works Company were not a corporation; second, that said company had no power to condemn private lands for their use; third, that the property of a citizen cannot be appraised and- taken from him without his consent or trial by jury; fourth, that by a contract of petitioners with the city, by ordinances confirmed by the Legislature, and referred to in the petition to the County Judge, the company is required to lay its pipe through the public streets of San Francisco, and not through private property.

The writ was issued by consent of defendant, his return made setting forth the proceedings hereinbefore named; and after a hearing, the proceedings before the County Judge were annulled.

The following are the sections of the most important acts which are referred to in the briefs of counsel and the opinion of the Court. The first section of the Act of April 14th, 1853, entitled “ An Act to Provide for the Formation of Corporations for Certain Purposes,” is as follow's:

“ Section 1. Corporations for manufacturing, mining, mechanical or chemical purposes, or for the purpose of engaging in any species of trade or commerce, foreign or domestic, may be formed according to the provisions of this act; such corporations, and the members thereof, being subject to all the conditions and liabilities herein imposed, and to none others.”

This section was amended by the Act of April 30th, 1855, entitled “An Act to amend an Act entitled ‘An Act to Provide for the Formation of Corporations for Certain Purposes,’ passed April 14th, 1853,” so as to read as follows:

“ Section 1. Section first of said act is amended so as to read as follows: ‘ Corporations for manufacturing, mining, mechanical, wharfing and dockage or chemical purposes, or for the purpose of engaging in any species of trade or commerce, foreign or domestic, may be formed according to the provisions of this act; such corporations, and members thereof, being subject to all the conditions and liabilities herein imposed, and to none others.’ ”

The first, second and sixth sections of the Act of April 22d, 1858, entitled “ An Act for the Incorporation of Water Companies,” are as follows :

“ Section 1. The provisions of an act entitled ‘ An Act to Provide for the Formation of Corporations for Certain Purposes,’ passed April 14th, 1853, and the provisions of an act entitled ‘An Act to amend an Act entitled an Act to Provide for the Formation of Corporations for Certain Purposes, passed April 14th, 1853,’ and passed on the thirtieth day of April, 1855, shall extend to and apply to all corporations already formed, or hereafter to be formed, under said acts, for the purpose of supplying any city and county, or any cities or towns, in this State, or the inhabitants thereof, with pure fresh water.

“ Seo. 2. Any company incorporated for the purposes specified in the preceding section shall have the right to purchase, or to appropriate and take possession of, and use and hold, all such lands and waters as may be required for the purposes of the Company, upon making compensation therefor. The mode of proceeding to appropriate and take possession of such lands and waters, when the parties cannot agree upon a purchase thereof, shall be the same as prescribed in sections twenty-seven, twenty-eight and twenty-nine of 'An Act to Provide for the Incorporating of Railroad Companies,’ passed April 22d, 1853, except that such proceedings shall be had before the County Judge of the county in which such lands or waters, or both, may be situated ; provided, that all reservoirs, canals, ditches, pipes, aqueducts, and all conduits heretofore built, or that hereafter may be constructed, by any corporation formed under this act, or claiming the privileges, rights and immunities herein granted, or any of them, shall be used exclusively for the purpose of supplying any city and county, or any cities or towns, in this State, or the inhabitants thereof, with pure fresh water.

“ Sec. 6. Any corporation heretofore formed for the purposes specified in this act shall have the right to reincorporate under the provisions of this act, without losing, forfeiting or diminishing any of the rights, privileges, franchises or immunities which they have heretofore lawfully acquired.”

The twenty-eighth section of the Act to provide for the incorporation of railroad companies, passed April 22d, 1853, referred to in section two of the Act of April 22d, 1858, above given, and the only section of the Railroad Act material to the present case, declares, in substance, that until otherwise provided by law, any company organized under the act "may enter upon, take possession of and use all such real estate and property as may be required for the construction and maintenance of a single or double track railroad, and the convenient accommodations appertaining to the same, by complying with the following provisions: whenever the said corporation shall not have acquired by gift or purchase any land, real estate or property, so required as aforesaid, or which may be affected by any operation connected with such construction and maintenance, it shall be lawful' for the company (by a petition signed by its attorney or agent, describing with convenient accuracy and certainty, by map or otherwise, the lands, real estate or property so required to be taken or to be affected, setting forth the name and residence of each owner, or other persons interested therein as owner, claimant, tenant, lessee or incumbrancer, so far as known to such attorney or agent, or appearing of record) to apply to the Judge of the District Court, either in term time or vacation, of the county where the said lands, real estate or property shall lie, praying the appointment of commissioners to ascertain the compensation to be made to such owners and persons interested, for the taking or injuriously affecting such lands, real estate or property as aforesaid ; ” that the Judge, after being satisfied that a certain notice of the application has been given to the owners and persons interested in the lands, shall, by an entry in his minutes, appoint five competent and disinterested persons as commissioners-to ascertain such compensation, the commissioners to be sworn, and to take testimony, and then, after viewing the premises, three or more to “ ascertain and certify the compensation proper to be made to said owners and parties interested for the land, real estate and property so to be taken or injuriously affected,” etc., and to file with the County Clerk of the county where the lands lie a certificate of the ascertainment and assessment, describing the lands by maps or otherwise with convenient certainty ; that either party aggrieved by the decision of the Commissioners may appeal to the Supreme Court as in other cases tried before the District Court— the appeal not to prevent the company from proceeding with their work, or retaining or taking possession of such lands, etc., as may be necessary for the successful prosecution of the road ; that the Court or Judge, upon such certificate being filed, and upon proof that the assessment has been paid to the proper parties or deposited with the Clerk of the Court, shall enter in his minutes a rule describing the lands, the assessment, mode of making it, and the payment or deposit of the amount of such assessment—a copy of the rule to be recorded in the County Recorder’s Office as a deed— the company, upon the entry of such rule, being authorized to “use and occupy all lands, real estate and property described in said rule as required to be taken as aforesaid during the continuance of the corporation,” by that or any subsequent act, and to “take possession of what they are not at the time in possession of, and hold and use all described in said rule for the purposes of said road, or otherwise for the benefit of the company, and shall thereupon be discharged from all claims for damages by reason of any matter specified in the said petition, certificate or rule of Court; ” that if, after such attempted ascertainment of compensation, it shall appear that the proceedings were defective, and that the title acquired thereby for the use of the road fails in whole or in part, then new proceedings may be had, etc.