Page images
PDF
EPUB

estate in the land, shows a sufficient case in equity, to sustain an injunction, if his complaint avers possession and a right to the possession of a toll-road for the purpose of collecting tolls thereon, and that the county through its board of supervisors interferes with and obstructs the free use and enjoyment of his property by depriving him of his tolls. Welsh v. Courity of Plumas, 80 Cal. 339.

The board of supervisors are permitted in dividing the county into road districts, to include in them incorporated towns in which no work is actually done upon the streets by virtue of any law relating to street work [Stats. 1883, p. 20, amending Pol. Code, Sec. 2641 ], although the act of incorporation may authorize such work to be done, and in an election contest over the office of road overseer in a district including such town, it will be presumed that the town was rightly included by the order of the supervisors, in the absence of any showing that street work was actually done in pursuance of the incorporation act or some other law relating to street work in such municipality. Wristen v. Donlan, 79 Cal. 473. And see the case of Woodward v. Fruitvale S. Dist., 99 Cal. 554.

A deed of the premises, including a road across the same, by one who has by acts dedicated the said road as a high way, cannot operate as a revocation of the dedication after an acceptance and user by purchasers of lots and the public. And

When an owner subdivides his land into lots with an

avenue running through the same, and sells lots along said avenue, and purchasers of lots use the avenue, and any one having occasion uses the same, and as to some of the lots, the avenue is the only way of ingress or egress, the plat of lots and avenue also being recorded, and the use of the avenue continued for three or four years, the act of dedication and acceptance of the avenue as a public highway is complete, and a purchaser of a portion of the avenue from the original owner will not be permitted to fence up or obstruct the same. Brown v. Stark, 83 Cal. 637.

A person who claims rights, under proceedings of the supervisors, to open a public highway, must show a strict compliance with all the provisions of the statute. If the notice which is required [Stats. 1862, p. 525] to be posted on the door of the supervisors' room is not proven, or if it is not proven to have specifically set forth the intermediate points through which the road is to pass, etc., the jurisdiction of the board to proceed will not be shown. And

In proving the establishment of a road which was petitioned for to be established in two counties, it is essential that there be shown a concurrence of the viewers with the petitioners as to the necessity of the road, or else the supervisors will have acquired no jurisdiction to open any part of the road. And

Under a contention of dedication of a road public use, by five years user, the question

of highway or no highway is one of fact to be determined by the trial court. And

When trespasses already committed by a road overseer in removi:g obstructions from an alleged highway which has no legal existence would probably be indefinitely repeated, injunction may be granted to avoid a multiplicity of suits. And

The maintaining of gates across a roadway has always been considered as strong evidence of a mere license to the public to pass over the designated way, and in rebuttal of a dedication to public use. Smithers v. Fitch, 82 Cal. 157. See sections 2643, subdivision 9, amended 1893, [Stats. p. 114), also sections 2829, 2830 Political Code.

It is true that the right to collect tolls on a toll road is a franchise, and that tolls can only be collected after the board of supervisors has fixed the rates; but a board of supervisors has no authority to arbitrarily refuse to fix rates, and thereby destroy the value of the toll road property. The board may be compelled by mandamus to fix such rates. Volcano Cañon R. Co. v. Placer Co., 88 Cal. 634; Stony Hill T. R. Co. v. Supervisors, 88 Cal. 632.

A county may sue in its own name to recover taxes levied upon a road district. And

Highways include bridges. [Political Code 2618.] And

If it be conceded that proceedings for the abandonment of a public road should be instituted by petition, still it is held that no bond need be given in such proceeding. Keena v. Board of Supervisors, 89 Cal. 14.

Where, in the original assessment roll, a special bridge tax in a road district was not carried to nor entered in the column headed “total tax," but the assessment roll showed clearly what the omitted total tax was, the omission may be supplied by the assessor, upon consent in writing of the district attorney, at any time prior to a sale for delinquent taxes. [Sec. 3881 Pol. Code.] County of San Luis Obispo v. White, 91 Cal. 434-438.

Eminent domain--see city of Pasadena v. Stimson, 91 Cal. 238 for numerous points—all equally applicable to county. And as to streets and highways, numerous points are decided in Oreño v. City o' Santa Barbara, 91 Cal. 621, and People ex rel. Roberts v. Beaudry, 91 Cal. 213, all equally applicable to counties.

The act of constructing and opening a toll road for use, followed by public user thereof, constitutes a dedication of it as a public road. The facts that tolls are demanded and that the public uses it only on condition of paying tolls, does not affect the question of dedication. The board of supervisors has no authority to grant a franchise to collect tolls upon a free public road. And

A franchise for a toll road, granted by the legislature for a period of twenty years, expires by limitation at the expiration of the twenty years, and the road then becomes a public highway. Blood v. Woods, 95 Cal. 81. A mere right of way for laying water pipes is not a franchise. Political Code 4016 reads: "To grant licenses and franchises, as provided by law, for constructing, keeping and taking tolls on roads, bridges, fences, wharves, chutes and piers.” This does not give power to grant a franchise for laying water pipe in one county by which water for common distribution and sale in another county is conducted. Spring Valley W. W. v. Barber, 99 Cal. 38.

The authority to close up and alter highways outside of municipalities is conferred upon the supervisors of the several counties, and can only be exercised through the instrumentalities and in the mode prescribed by statute. In strictness all public highways belong to the state, which holds them for the public use, subject to legislative control, ard the statute which provides that a road shall not be vacated until so ordered by the supervisors is as binding upon the state as upon individuals. People v. County of Marin, 103 Cal. 223.

As to transferring money from other funds to road fund, see notes under subdivision 18 of this section, infra.

SUBDIVISION 5: The county government act does not require that the county physician to be appointed by the supervisors should have received a degree in a medical college or university, but authorizes the appointment of one who has passed a satisfactory examination before the board of examiners of the state medical society, and is legally licensed to

« PreviousContinue »