Damrell v. Board of Supervisors, No. 2,363

No. 2,363 | Cal. | Oct 15, 1870

Rhodes, C. J.,

delivered the opinion of the Court.

The motion to dismiss the appeal, on the ground that the notice of appeal was not given by the President of the Board of Supervisors, or the District Attorney, must be denied, as the notice was given by the attorneys of record.

The defendants moved to dismiss the writ, and the first ground now urged, is that it does not appear that the plaintiff is “beneficially interested” in the subject matter of the proceeding. The objection that this point cannot be considered now, because not presented in the Court below, may be waived, as we are of the opinion that the point is not well taken. The petition shows that the proposed road will run over the plaintiff’s land, and he is interested in the matter of the compensation for his land, which may be taken for the use of the road, it not appearing that he has granted the right of way, either with or without compensation. As the proposed road will pass over his land, he is interested in having the road located in such manner, that it will be legal and valid when it is declared a public highway.

It is sufficiently shown in the petition in what particulars the Board exceeded its authority. It is unnecessary to allege that a Board of Supervisors, in laying out a public road, exercises judicial functions, for that is true as matter of law. There are many valid objections to the proceedings before the Board, which are not mere matters of error. It is axiomatic law, that the authority granted to a Board or tribunal to acquire private property for public purposes, by special proceedings, and not through the will or consenl of the owner, must be strictly pursued or the proceedings will be void.

The Court having annulled the proceedings subsequent to the appointment of the viewers, the proceedings prior to that time need not be noticed.

The viewers are required by the statute (Stat. 1859, p. 368), among other things, to view out and mark the line ol the road, and report the probable cost of its construction. They viewed out a road which diverges, at some points, from the proposed road; they have not reported that they marked out the line of the road, nor stated the probable cost of its construction. It does not appear thai tbe owners of tbe land, over wbicb tbe proposed road will run, were notified of tbe place of meeting of tbe viewers, as is required by tbe statute.

Tbe Board exceeded its authority, in establishing tbe road on a line wbicb deviated from that- of tbe proposed road,

Tbe petition does not state that tbe proposed road will run through any portion of tbe county of San Joaquin, or even of this State. For this defect, tbe Court would have been justified in vacating tbe entire proceedings.

Judgment affirmed.