Curran v. Shattuck.

By the Court, Rhodes, J. This action was brought to enjoin the defendant from proceeding as an overseer of roads to open a highway over the land of plaintiff.

A petition was filed before the Board of Supervisors on the 15th of September, 1861, pursuant to previous notice, for the location of the road, and on that day the Board appointed viewers, and they having failed to act, other viewers were appointed on the 5th of November, 1861, and directed to proceed to view the road on the 15th, and they, having been sworn on the 20th, adjourned to the 23d, and on that day proceeded to view the road, and subsequently they reported in favor of the road as petitioned for, and on the 7th of April, 1862, the Board confirmed the report, except as to the damages, and on the 5th of May proceeded to assess the damages, and ordered that the damages to the lands of Higgins, the plaintiff’s grantor, be assessed at three hundred dollars. That sum was tendered to him, but he refused to accept it. The Board, on the 15th of September, made an order establishing the road at the width of sixty feet, and a copy of the order was delivered to the defendant, who was about to open the road according to the said order.

From the commencement of the proceedings to the 29th of January, 1862, Higgins was the owner in fee of a tract of land over which it was proposed to lay out the road; and on that day he conveyed a portion of his premises to .the plaintiff, and [431]the deed was recorded on the 31st of January; but Higgins remained in possession of the premises as a tenant during all the proceedings of the Board. That plaintiff was a non-resident of the County of Alameda during the pendency of the proceedings, and had no actual notice thereof until after the order of the 15th of September, 1862. Damages were not assessed for his benefit, nor were they tendered to him, nor to any one as his agent. Upon the hearing, the Court decreed a perpetual injunction, restraining the defendant from laying out the road over plaintiff’s land. The defendant appeals from the decree, and from the order overruling his motion for a new trial.

The proceedings were commenced under the general road law of 1861; but on the 24th of March, 1862, the road law for the County of Alameda took effect; and the question is raised by counsel whether the proceedings before the Board, after that date, were had or should have been conducted under the general or the special Act; but the decision of this case does not turn upon that question, for if the public have not acquired the right of way by means of the proceedings of the Board of Commissioners under either Act, then the injunction must be sustained. The object of the proceedings of the Board of Commissioners is to ascertain if the proposed road will be beneficial to the public, and if so, to determine upon the route, and then to acquire the right of way over the lands necessary for the road. When parties have not granted the right of way, the proceedings of the Board of Supervisors amount in effect to a condemnation of the land for public uses. It is .provided in the Constitution of this State, that private property shall not be taken for public use without just compensation. Ho right in the land vests in the public until such compensation is made or tendered to the owner. If the authority to ascertain the compensation, or to assess the damages, as is usually denominated in the Road Acts, and, upon paying or tendering the same, to divest the owner of some interest in his land, is conferred upon a Board like that of the Supervisors, possessing but a limited and inferior juris