33 P. 262 | Cal. | 1893
This is an action brought by a road overseer to cause certain obstructions to be removed from the public highway. The cause was tried with the aid of a jury, which found for the defendant. The plaintiff appeals from the judgment, and from an order refusing a new trial.
There are numerous assignments of error in the record, but I think it necessary to notice but a few of them. The existence of the highway for a portion of the way was shown by proceedings before the board of supervisors, which resulted in an order establishing the road. Between certain points this road had been changed by one Hickman, who opened a road across his land, fenced it on both sides, and allowed it to be used by the public, and to be worked and controlled by the public authorities. The old road had been fenced up. It was claimed that the new road was dedicated by Hickman to the public. Defendant was permitted to show, as rebutting the presumption which would arise from the above and other acts on the part of Hickman, that Hickman had opened the road to the public in consideration of the promise of one of his
Under the last order the plaintiff assumes to be acting. Defendant contends that the order of June 5th is an order vacating the road. That a private road could not be established until the public road was first vacated. Therefore, although the report did not in terms recommend that the road be vacated, such is necessarily implied, and by adopting it the board must be held to have vacated the highway, although it was not competent for them to convert it into a private road in that way.
I do not think this position can be maintained. An order vacating a public highway is legislative, and the enactment ought to appear in the order. Great strictness is not required, but, if an order may be helped by such a reference, the report referred to should itself be sufficient to indicate the act determined upon. The statute does not provide for viewers in the matter of the discontinuance of a highway. The provisions in regard to viewers evidently refer only to laying out and altering highways. By the twenty-first section of the county government act of 1883, in force when these proceedings were had, it was provided that the board should cause to be kept a road book containing all proceedings and adjudications relating to the establishment and discontinuance of roads, etc. This matter does not seem to have been entered in such book. The report adopted did not recommend the abandonment of the road, but that deeds be taken of a right of way for a private road twenty-five feet wide, and then the laying out of a private road. The adoption of the report was an indication that the board would pursue that course, but no conveyances were received, and to lay out a private road would seem to require the concurrence of the person chiefly interested: Pol. Code, sec. 2692. Although the board indicated a willingness to pursue that course, it does not appear that they had the power to do so. Under the circumstances, I do not think the order was an abandonment of the highway, and it was therefore error to admit it in evidence over the objection of plaintiff.
This will dispose of many exceptions taken. If the order were excluded, no instructions in regard to its effect would be required. The plaintiff was entitled to an instruction as to-
We concur: Vanclief, C.; Searls, C.
For the reasons given in the foregoing opinion the judgment and order are reversed and a new trial ordered.