Harlin

The action was brought by the city of Santa Ana, a municipal corporation, to condemn a right of way over certain laud of the defendant for the opening of Second Street in said city. The cause was tried by a jury and the damages assessed at two hundred and sixty-seven dollars, for which sum judgment was entered in favor of defendant, as well as a decree that the use of the land for the purposes of a street was a public use and the taking thereof necessary to such use. The appeal is from this judgment and from an .order denying a motion for a new trial. The final order of condemnation had not been made when the appeal was perfected.

The first error assigned is founded upon an order of the court striking out from defendant’s answer certain allegations -to the effect that the action is instituted upon the motion and at the request and for the benefit of the Santa Ana and Westminster Railroad Company, a corporation, for the purpose and benefit of said railroad company. Mahoney v. Spring Valley W. Works, 52 Cal. 159 , and Dillon on Municipal Corporations, sec. 596 (461), 3d ed., are relied upon in support of the alleged error.

Under the act of March 6, 1889 (Stats. 1889, p. 70), the…

I concur, and recommend to the court below for its guide the decision in San Diego Land etc. Co. v. Neale, 88 Cal. 50 , where the whole subject was carefully considered by this court in Bank.