Dunn v. County of Santa Cruz

[401]

SPENCE, J.

Plaintiffs sought a declaration that a certain road was a public road and also sought a judgment for damages for the alleged failure of the defendant county to replace a fill across a creek or gulch which said road traversed. Defendant denied practically all material allegations of the complaint and the trial court found in favor of defendant. Plaintiffs appeal from the judgment entered upon the findings of the trial court.

Plaintiffs contend that several findings of the trial court are not sustained by the evidence. We will discuss, however, only the finding that this road was not a public road as plaintiffs concede that “all their rights are dependent upon this finding being declared erroneous. ’ ’

The road in question was a small country road which ran for about one-half mile from the Soquel-San Jose road to plaintiffs’ property. It was not a through road but it merely traversed the property of the owner of the land bordering on the Soquel-San Jose road and served plaintiffs and one other permanent resident. There was a gulch or creek-bed in close proximity to the Soquel-San Jose road which had been formerly crossed by means of a bridge, which bridge was later replaced by a fill. This fill was washed out during the heavy rains in February, 1941, and the defendant county refused the demand of plaintiffs that it repair or replace said fill. Thereupon, plaintiffs commenced this action.

Plaintiffs’ claim that said road was a public road was not based upon any express dedication or upon any formal acceptance by the defendant county. Said claim was based solely upon a showing that for many years the road had been open and had been used by anyone who cared to use it; that the county had slightly reinforced the bridge across this gulch in 1926. at a time when it was planned to use said bridge temporarily for a detour during the reconstruction of the SoquelSan Jose road; and that in 1935 and 1936 certain P.W.A. crews had torn down the bridge and constructed a wooden culvert which was thereafter covered with a fill by the county road crew by the use of excess material from the work on the Soquel-San Jose road.

We need not pause to consider whether such showing would have sustained a finding that said road or any part thereof was a public road. We need only concern ourselves with the question of whether such showing compelled such finding.