No. 13295 | Cal. | Oct 5, 1894
Lead Opinion
On the petition of plaintiff the superior court of Glenn county issued a writ of review to the defendant board, commanding it to certify and return to that court all its proceedings in laying out and establishing a public road upon plaintiff’s land.
It is not disputed that the defendant obeyed the writ by returning certified copies of all matters of record, and all matters required to be recorded relating to the laying out and establishing of said road, showing, among other things, that the board duly appointed three persons — Stockwell, Knock, and Armstrong — as viewers of the proposed road, a majority of whom — Armstrong and Knock — reported to the board that they had viewed and surveyed the proposed road, and that they recommended that it be established and opened; The board approved the report of the viewers, and ordered the road “ to be opened as a public road according to law,” and declared the amount of damages awarded to each non-consenting landowner; and that the amount awarded to plaintiff for damages was ten hundred and ten dollars.
The court below found that, in the matter of laying out the road, the defendant had not, in any respect, exceeded its lawful jurisdiction, and thereupon dismissed the writ.
For the alleged purpose of showing that the report of the viewers was null and void the plaintiff on the trial offered as evidence the ex parte affidavit of W. H. Sale, clerk of the board, to the effect that, on the hearing of the report of the viewers by the board, he heard Armstrong, one of the signers of that report, testify under oath that he (Armstrong) did not “ survey or lay out, or help to view or survey or lay out said road as contained in the report of the viewers upon which said board of supervisors was acting.” This affidavit was objected to by defendant on several grounds; the court sustained the objection, and plaintiff excepted.
The bill of exception shows that a day was fixed for hearing the report of the viewers, and notice thereof given, in full compliance with section 2688 of the Political Code, which section, in addition to requiring a day for the hearing to be fixed and notice thereof to be given, further provides: “The board must, on the day fixed for the hearing, or to which it may be postponed or continued, hear the evidence offered by parties interested for or against the proposed alterations or new road,‘and must ascertain and by order declare the amount of damage awarded to each nonconsenting landowner over whose land they shall order the road to he opened, whether known or unknown, and declare the report of the viewers to be approved or rejected, in whole or in part.”
I think it clearly appears that, by virtue of this provision of the code, the board acquired jurisdiction to hear and determine all questions relating to the report of the viewers, and to approve or reject that report, either wholly or in part. That report was regular and valid upon its face, and the only question raised in regard to it was whether or not it was true — a question of fact to he resolved according to the weight of evidence. If, as contended, the conclusion or finding of the board upon this issue was contrary to the evidence, it was merely an error committed in the exercise of unquestionable jurisdiction, and is, therefore, beyond the reach of a writ of review. (Central Pac. R. R. Co. v. Placer
But even if such an error could have been corrected upon a writ of review, all the evidence applicable to the issue must hate been brought before the court of review in some officially authenticated form as part of the record of the board. In this case it does not appear that any part of the testimony of the ten witnesses that appear to have testified before the board was reduced to writing; and though the clerk of the board, W. H. Sale, whose affidavit was rejected, certified that his official return to the writ of review was “a full, true, and correct copy of the original proceedings of the hoard of supervisors of Glenn county .... as the same remain of record and on file in my office,” yet no part of the testimony of witnesses is contained in that return; and the court was not asked to order any amended or additional return, but only to make Sale’s unofficial affidavit as to what one of the ten witnesses testified a-part of the record which he had officially certified to be full, true, and correct.
I think the judgment should be affirmed.
For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.
Concurrence Opinion
concurring. — I concur in the judgment. Upon the face of the return to the writ the proceedings of the board of supervisors were regular, and nothing to the contrary is suggested by the appellant. The only point urged by her as error is the refusal of the court to allow the return to be amended by an ex parte affidavit that there was testimony before the board of supervisors to the effect that one of the signers of the report did not view or lay out the road. The affidavit did not purport to state that the viewer did not act, but that some per
Whether the board of supervisors acquired jurisdiction of the proceedings is a question which is not presented by the record before us, and upon which no opinion should be expressed. I am not prepared to hold that the mere fact of giving the notice required by the statute vests the board of supervisors with such jurisdiction over the proceedings as to preclude the right to show that the purported report, upon which their right to give such notice rests, was never made. This is entirely different from attempting to show that after the jurisdiction had been acquired they decided erroneously upon the evidence before them (Central Pac. R. R. Co. v. Placer County, 34 Cal. 361), or that evidence was improperly received by them. (Central Pac. R. R. Co. v. Placer County, 46 Cal. 670.)