County of Santa Barbara v. Yates

This is a proceeding instituted by the county of Santa Barbara to condemn a right of way for a public road. Mary M. Yates, one of the defendants in the proceeding, appeals upon the judgment-roll accompanied by a bill of exceptions from the judgment of condemnation.

The sole question presented for consideration is the alleged insufficiency of the bond which, under the provisions of section 2683, Political Code, is required to accompany the petition for the opening of the road. This section provides that "the petitioners must accompany the petition with a good and sufficient bond, to be approved by the board of supervisors, in double the amount of the probable cost of the viewing and laying out or altering of any road, conditioned that the bondsmen will pay all the costs of viewing and surveying in case the prayer is not granted."

The bond presented with the petition was conditioned that the bondsmen "will pay all the costs of viewing and surveying in case the prayer of said petition is not granted, and the saidroad finally not opened." It is contended that the insertion in the bond of the words italicized renders the bond void, and that the defect appearing in the bond itself, objection thereto may be taken collaterally in the proceeding to condemn the property. Conceding the bond to be defective as claimed, we are, nevertheless, of the opinion that objection thereto upon such ground cannot be raised collaterally. While the law requires certain preliminary steps to be taken before the board of supervisors prior to the maintenance of an action to condemn the property of nonconsenting land owners, jurisdiction to determine the sufficiency of such steps, or whether they have been properly taken, is vested solely in the board of supervisors. Its determination therein must be deemed the final *Page 46 judgment of a competent tribunal having jurisdiction in a proceeding entirely distinct and separate from the action to condemn. The order directing the district attorney to institute the action is in the nature of a judgment adjudicating upon the sufficiency of all prior proceedings requisite to the making of the order. If the proceedings be irregular, or any essential step therein wanting, objection thereto should be taken by obtaining a review upon certiorari of such proceedings in the proper court. Not only is this rule prescribed by section 2690 of the Political Code, which provides that "no informality in the proceedings of the board shall vitiate said suit, but the said order of the board directing the district attorney to bring suit shall be conclusive proof of the regularity thereof," but it finds ample support in the authorities. (Humboldt County v. Dinsmore, 75 Cal. 604, [17 P. 710];County of Siskiyou v. Gamlich, 110 Cal. 94, [42 P. 468];County of San Luis Obispo v. Simas, 1 Cal.App. 175, [81 P. 972]; County of Sutter v. Tisdale, 136 Cal. 474, [69 P. 141].) In the case last cited it is said: ". . . the form of the bond which was presented with the petition . . . became immaterial, and evidence in reference thereto . . . was properly excluded by the court." In San Luis Obispo v. Simas,1 Cal.App. 175, [81 P. 972], it is said that "none of the intermediate orders or proceedings are reviewable in this action," which "shall be determined by the court or jury in accordance with the rights of the respective parties as shown in court, independent of said proceedings before the board." While the taking of the preliminary steps required should be alleged in the complaint, it seems that the order directing the bringing of the action is in itself proof of the regularity of such proceedings.