69 P. 418 | Cal. | 1902
The action was commenced by the road commissioner, in the name of Sierra County, to enjoin the running of water and débris from the mine of respondents upon and over a public highway of the county and a public plaza in the town of Downieville, Sierra County. Defendants demurred on the two grounds: 1. That the court had no jurisdiction; and 2. That plaintiff had not legal capacity to sue. The court sustained the demurrer on the second ground, and a judgment of dismissal was entered from which plaintiff appeals. There is no brief filed by respondent.
The complaint shows that defendants were running twenty to thirty inches of water over a bank of loam, thence through a ground-sluice into boxes, thence the water was dumped upon the side of the mountain, from which it ran, highly charged with gravel and sediment, across said highway and plaza, depositing thereon large quantities of mud, gravel, and débris, thus obstructing the free use of both highway and plaza. Damages of twenty dollars are claimed, and also a penalty *549 of ten dollars for each day the injury continues, and it is alleged that defendants threaten to continue to run water and débris over said highway and plaza. The sufficiency of the complaint is not questioned by the demurrer, which was sustained on the sole ground that the plaintiff could not maintain the action, and this is the only question presented.
It was held in San Benito County v. Whitesides,
The sections of the code cited do not seem to provide for a case like the present one, where the cause of the obstruction is remote from the highway, and could not be removed by the overseer under any authority given him by the statute, and where the obstruction could be removed in no other effectual way than by closing down defendant's mining operations. The effective method to reach the injury and prevent its continuance is by bill in equity to enjoin defendants from doing the acts complained of, and this is what the action is designed to accomplish, and was, we think, properly brought in the name of the county.
The county is a body politic whose powers are exercised by the board of supervisors, and among the duties of the board is that of laying out, maintaining, controlling, and managing public highways, and any injury to a public highway is an injury to the county in its corporate capacity. The county has a special interest in the preservation of county roads which authorizes it to resort to such remedial measures as will preserve these highways to the free and unobstructed use of the public. (SeeCounty of Stearns v. St. Cloud etc. R. Co.,
It is proper to add, although the point is not raised by the demurrer, but may hereafter arise, that while damages may be recovered as incidental to the principal relief sought, there is no authority for inflicting the penalty of ten dollars for each day the obstruction continues, as claimed in the complaint. The penalty provided for in the sections of the Political Code referred to is a penalty to be enforced as there provided. But as the present action rests upon the general equity powers of the court, and not on these sections, the penalty cannot be recovered in this action.
The judgment should be reversed, with directions to the trial court to overrule the demurrer.
Cooper, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the judgment is reversed, with directions to the trial court to overrule the demurrer.
Harrison, J., Garoutte, J., Van Dyke, J.