31 Cal. 406 | Cal. | 1866
The object of this action was to obtain a decree of the Court annulling and setting aside certain orders made by the Board of Supervisors of Napa County, declaring a road, laid out over the land of the plaintiff, a public highway, and directing the Road Master to open the same; and to restrain the defendants and all persons acting under them from opening said road and from removing plaintiff’s fences for that purpose.
An application was made by the requisite number of citizens of the county for the location of a highway, which in its course passed through the plaintiff’s land. In due time and in due form the plaintiff made application for damages, in the sum of one thousand dollars, w'hich he would sustain in consequence' of the location of the road upon his land. Road Viewers were thereupon appointed by the Board of Supervisors, as required by the statute, (Laws 1861, p. 389,) who reported, among other things, in favor of laying out the contemplated highway, and the damages which the plaintiff would sustain thereby to be four hundred and fifty dollars. The plaintiff expressed himself dissatisfied with this award of damages, and, instead of the sum reported by the Viewers, demanded one thousand dollars. He and the Board of Supervisors were unable to agree as to the amount of damages which he should receive.? After this the Board accepted the report of the Viewers, and declared the road, as laid out and
The defendants by answer pleaded a tender, before this suit was brought, to the plaintiff of the four hundred and fifty , dollars awarded. Upon the trial of the issue joined the Court decided that the road described in the complaint was declared a public highway by the Board of Supervisors of Napa County in February, 1866, and that the plaintiff had been awarded by the Board the sum of four hundred and fifty dollars, as damages consequent upon the establishment of said road, and that that sum in United States gold coin had been’ tendered to the plaintiff prior, to the commencement of this suit, and that the plaintiff was not entitled to the relief sought by him or to any relief whatever, and therefore the complaint was dismissed. The plaintiff made an application for a new trial, which was denied.
The ground upon which the equity jurisdiction of the Court was sought to restrain the commission of the trespass threatened, was that by removing the fences the plaintiff’s crops of grain and" grass and his orchard and vineyard upon the land, which were of great value, would be destroyed, and the plaintiff alleged that the person who was proceeding to remove the plaintiff’s fences, under the authority of the order of the Board of Supervisors, was utterly insolvent and unable to respond in damages for the injuries which the plaintiff would sustain. There is no question raised in respect to the case falling properly within the equitable cognizance of the Court.
The statute provides that the Road Viewers shall report the amount of damages sustained by an applicant for damages, but the award of the Viewers when made by them and adopted by the Board of Supervisors is not conclusive of the subject,
The question of the tender of four hundred and fifty dollars, if it were admitted to have been well made, is wholly unimportant in the present condition of the case, inasmuch as it was not.ascertained at the time the money was offered, that it was the amount properly due the plaintiff. The plaintiff, we hold, is entitled to judgment on the pleadings.
The judgment is reversed and the Court below is directed to enter judgment in favor of the plaintiff in accordance with this opinion.