Lincoln v. Colusa County
Before: Shafter
Synopsis
Appeal from the District Court, Tenth Judicial District, Colusa County.
The complaint described the tract of land, and alleged that plaintiff was the owner of it; that a petition was ¡iresented to the Board of Supervisors of Colusa County, praying for the location and establishment of a public road from the Town of Colusa to the northern boundary line of Colusa County; that ^ the Board appointed viewers to survey and lay out the road ; that on the day that these proceedings were had, the plaintiff presented his petition protesting against and objecting to the action of the Board in laying out said road, and claiming damages therefor, should said road be laid out; that subsequently, the viewers thus appointed made their report to the Board, to the effect that they had surveyed the road, which ran about one mile, and a half through plaintiff’s land, and that they had awarded to him, as damages, only one dollar therefor; that the report of the viewers was thereupon accepted and approved by the Board, the road declared a public highway, and ordered to be opened by the Road Overseer of the proper district. The complaint charged that the plaintiff had been greatly damaged by the location of the road; that he was dissatisfied with the award of the viewers, and refused to receive the same. The complaint further charged that the road as located took from the plaintiff a con-' siderable portion of valuable farming land, and necessitated the building of several miles of fencing for the inclosure of plaintiff’s land, besides cutting off a portion of the tract of land from the benefits of the water of the Sacramento River, all to plaintiff’s damage to the amount of three thousand dollars.
Upon the trial of the case the plaintiff, after proving that he was the owner of the land, and after making his proof upon the question of damages, introduced in evidence a copy of his petition or protest against the action of the Board of 'Supervisors, and rested his case.
The petition did not state what damages the petitioner would sustain, nor what amount he claimed;
The plaintiff appealed.
The other facts are stated in the opinion of the Court.
By the Court,
Shafter, J. This is an action to recover three thousand dollars as damages alleged to have been sustained by the plaintiff by reason of the location of a public highway over his land by order of the Board of Supervisors of the defendant county.
A nonsuit was ordered at the trial on the ground that it [666]was neither alleged in the complaint nor proved as a fact, that the jdaintiff prior to the commencement of the action “could not agree with the Board of Supervisors as to the amount of damages sustained,” nor that he had even attempted such agreement.
The language of the statute is as follows : “If any person or persons claiming damages on account of the location or alteration of any road under the provisions of this Act shall be dissatisfied with the award of the road viewers, and cannot agree with the Board of Supervisors as to the amount of damages sustained, and shall refuse to receive the same, such person or persons shall within ten days from the time of the final hearing, commence an action against the county by name for such damages in a Court of competent jurisdiction ; which action shall be conducted in like manner as other actions in civil cases in the Courts of justice in this State.” (Acts of 1861, p. 392, Sec. 7.)
Under the Constitution, private property cannot be taken for public use except upon compensation made. It is competent for the Legislature to fix the mode of condemnation, the method by which the damages to individuals shall be determined and the proceedings for their recovery. This power has been fully exercised, in relation to lands taken for public highways, in the Act of 1861. Strict compliance with the requirements of the Act is necessary to accomplish a condemnation- on the part of the public, and a like compliance with all the provisions relating to the assessment of damages and their recovery is essential also on the part of the landowner. Under the Act of 1861, a person whose lands have been taken for a public road has no right of action against the county for damages until after a fair and honest attempt on his part to agree upon the amount with the Board of Supervisors. Such endeavor is a condition precedent to his right to sue. The provision is contained in most if not in all of our statutes relating to the condemnation of private property to public use, whether directly, or indirectly through the action of corporations. The object of the provision, wherever [667]
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