22 Cal. 251 | Cal. | 1863
The complaint in this case, which is duly verified, avers that the plaintiff is the owner of a tract of land; that a petition was duly presented to the Board of Supervisors of the county where the land is situated, praying for the opening of a road on a route across his land; that viewers were duly appointed to assess the damages done to private property by such location; that he remonstrated against
The Road Law of 1861 (Stat. of 1861, 389) provides that, “ If any person or persons, claiming damages on account of the location or alteration of any road under the provisions of this act, shall be dissatisfied with the award of the road viewers, and cannot agree with the Board of Supervisors as to the amount of damages sustained, and shall refuse to receive the same, such person or persons shall, within ten days from the time of final hearing, commence an action against the county, by name, for such damages, in a Court of competent jurisdiction, which action shall be conducted
The plaintiff in this case was a party to the proceedings for the location of the road before the Board of Supervisors. He filed his claim for damages, and if the viewers failed to award him what he was entitled to, either by not finding him entitled to any damages, or by awarding him an insufficient amount, he could have brought the matter before the Board for their determination either before or at the time of their final action upon the report of the viewers. Whether he thus appeared or not is not stated ; but, as he was a party to the proceedings, it was his duty thus to act, if he was dissatisfied with the award • of the viewers. Then, if he could not agree with the Board as to the amount of damages, he was entitled to bring his action against the county, if brought within ten days from the time of final hearing. He has not done so; and we think it clear that he is thereby barred from bringing this action, or any action, for damages. His failure to bring his action for damages within the time limited by the statute, is a waiver of his claim therefor. It may be that he is benefited more than he is injured by the location of the proposed road, and in such case it would be proper for him to waive his claim, but he is to be the judge on that point. The statute affords him the proper remedy in case he is injured by the award, properly limits the time within which he must commence his suit to enforce that remedy, and clearly points out and declares what the effect shall be in case he fails to comply with its provisions. There is no pretense that the act is unconstitutional.
The order refusing to dissolve the injunction is reversed, and the injunction is dissolved.