Mahoney v. Bd. of Supervisors of S.F. , 53 Cal. 383 ( 1879 )

By the Court, McKinstry J.:

1. The petition does not show that petitioners ever offered to sell at any price, or that they refused to name a price, and shows affirmatively that the Commissioners never determined on a price to offer for the lands and waters of petitioners.

There was, therefore, no such negotiation as is required by the second section of the Act of March 27th, 1876. Such negotiation is made a necessary preliminary to the appointment of a Board to' condemn.

2. The act distinctly required that the Commissioners should make careful examination of all water rights, etc., on the peninsula of San Francisco, and “ wherever convenient to supply San Francisco with water,” and authorized them to purchase any such rights and property.

While it may be that the Court could not be called on to review the judgment of the Commissioners, or to hold that they should purchase one property instead of another, yet it is manifest that they were not empowered arbitrarily to refuse to consider the propriety of purchasing any one of the properties which they had examined.

It affirmativ.ely appears from the petition that the Commissioners made no effort to agree as to price with the owners and claimants of any of the properties which they had examined not upon the peninsula ; but that upon receiving the opinion of the City and County Attorney that they had no power to obtain a supply of water from those owning water rights off the peninsula, they confined their efforts to agree on a price, (whatever such efforts may have been) to those owning and claiming such rights on the peninsula.

As the Commissioners refused to consider the propriety of purchasing any water rights off the peninsula, and made no effort to purchase any such, it follows that they were not au- / thorized to make appointments, or to take any step toward the condemnation of any particular land or water, and no duty was cast upon the Board of Supervisors to take action with reference to the appointments made by the Commissioners.

■Petition and intervention dismissed, and writ denied.