99 Cal. 443 | Cal. | 1893
The plaintiff is the road overseer of Soquel Road District, in Santa Cruz County, and this action was commenced by him to have an obstruction placed by defendant in a public highway in that district abated as a nuisance, and also to recover from defendant the sum of ten dollars for every day the obstruction remained after he had received notice to remove it.
The judgment of the superior court was in favor of plaintiff, ánd was to the effect that the obstruction complained of be' abated as a nuisance, and that plaintiff recover from defendant in addition to the costs of the action the sum of eight hundred and seventy dollars, the penalty demanded in the complaint, because of defendant’s failure to remove the obstruction. The defendant appeals.
1 1. The objection is made that the complaint is fatally defective in its description of the highway defendant is charged to have obstructed. The complaint alleges that the highway referred to is forty feet wide, and that it commences at a certain point named, thence following the course and distance of a given line “to the line of average high tide to the bay of Monterey”; but it is not directly averred whether the land thus described is the center or one of the side lines of sucli road. We think this general description sufficient. When in describing the location of a road the width is given, and but one of its lines particularly described, as in the complaint here, the line so described by its course and distance will be deemed to refer to the center line of the road in the absence of anything in other parts of the description tending to indicate a contrary intention. (The People v. The Commissioners of Highways of Redhook, 13 Wend. 310.)
3. The most important question in the case relates to the right of the plaintiff to recover the penalty of $10 for each day the obstruction continued after defendant was notified to remove it. This right, if it exists at all, is given by sections 2731, 2732, and 2734 of the Political Code. Section 2731 provides: “If any highway duly laid out or erected is encroached upon by fences, buildings, or otherwise, the road overseer of the district may orally, or in writing, require the encroachment to be removed from the highway.” Section 2732 provides for the giving of notice to the person causing or owning the encroachment, which notice must specify “ the breadth of the higli~ way, the place and extent of the encroachment, and requiring him to remove the same within ten days”; and by section 2734 it is provided that “if the encroachment is denied and the owner, occupant, or person controlling the matter or thing
The encroachment referred to in this last section is one upon such a highway as is described in the preceding section (2731), viz., a highway “duly laid put or erected.” The words “duly laid out or erected,” as there used, have reference to the formal and -official action which the Jaw enjoins upon those charged with the duty of establishing public highways; and a highway “duly laid out or erected,” within,the meaning of section 2731 of the Political Co.de, is one which has been established by the proper officers in the manner prescribed by Jaw. By subdivision 2 of section 2643 of the Political Code, it is made the duty of the boards of supervisors of the several counties to “cause to be recorded as highways such roads as have become such by use or abandonment to the public” within their respective counties; and, in our opinion, until so recorded such a highway cannot be said to have been “duly laid out or erected,” so as to authorize a recovery of the statutory penalty given by section 2734 of the Political Code. The only remedy which the,public has for an obstruction in a highway which exists only by user and which has not been duly recorded, is an, action to remove the obstruction as a nuisance. Substantially the same conclusion was reached by the court of appeals of the state of New York, in construing certain sections of the revised statutes of that state relating to penalties for the encroachment upon highways and containing language, very similar to that which is used in the above-mentioned sections of the Political Code. (See Doughty v. Brill, 3 Keyes, 612; Talmage v. Huntting, 29 N. Y. 447.) And it is not difficult to understand why the, legislature deemed it proper to make this distinction in regard to the remedies allowed to the public for an encroachment between the case of an encroachment upon a highway established with deliber.atipn and care by officers appointed for that purpose, and one upon a road not formally accepted and recorded, and existing only by reason of dedication or abandonment to the public. In the
4. The court erred in admitting in evidence the ordinance of the board of supervisors directing the clerk of the board to record as a public highway “that certain road in Soquel Eoad District .... leading from the village of Soquel to the beach near the wharf of the Steamship Company.” Assuming that
5. In the memorandum of costs filed by plaintiff there was an item or charge of $49.70 for jury fees, and the defendant made a motion to have the same stricken out and disallowed. The motion was made before judgment and was denied, and the order may, therefore, be reviewed on appeal from the judgment. (Empire etc. Co. v. Bonanza etc. Co., 67 Cal. 406.) It appears that when the case was set for trial the plaintiff waived a trial by jury, and the defendant stated that while he did not demand a jury he would not expressly waive the same. Upon the day fixed for the trial a jury was in attendance, and the bill of exceptions states that “the parties then announced that they had agreed to try the case without a jury. Thereupon the court discharged the panel of jurors and the case was tried by the court without a jury,” and the plaintiff did not pay any jury fees, nor incur any liability therefor. Upon these facts the court erred in denying the motion of defendant. The plaintiff neither paid nor incurred any expense because of the attendance of the jury, and we are not aware of any law which entitles him to recover from defendant the amount of the attendance fees of such jurors.
Judgment and order reversed, and cause remanded for a new trial.
Fitzgerald, J., and McFarland, J., concurred.