El Dorado County v. Davison

By the Court, Currey, C. J.: On the 3d of May, 1864, the members of the Board of Supervisors of El Dorado County executed under their hands and seals a lease granting to the 'defendant a portion of the public highway known as and called the Placerville and Sacramento Boad, situated within the limits of El Dorado County, “ together with, all and singular, the tenements, hereditaments, lands, rights, appurtenances, franchises, immunities and privileges thereunto in any wise belonging, to have and to hold the saíne unto himself, his heirs and assigns ” for the term of three years from and after the 1st day of June then next, and further granting to the defendant the right to erect upon the line of the road described toll gates and to collect tolls from persons using the road at certain specified rates. In consideration whereof the defendant, in the same instrument, covenanted and agreed to keep the road in repair and proper condition for the public travel, and to pay to the County Treasurer of said county as rent one hundred dollars in United States gold coin per month during said term for the use and benefit of said county.

The plaintiff, by complaint, averred that the defendant entered into and took possession of the portion of the highway leased to him, under and in pursuance of the instrument executed, but that he had made default in the payment of the rent reserved according to his covenant and agreement, and that by reason of the premises he was indebted to the plaintiff in the sum of six hundred dollars in gold coin, for which judgment was demanded against him, with the costs of the action.

The defendant demurred to the complaint on the following grounds:

[523]First—That the complaint does not state facts sufficient to constitute a cause of action.

Second—That the plaintiff has not legal capacity to sue.

Third—That the complaint is ambiguous, unintelligible and uncertain.

The demurrer was overruled and leave granted to answer. The defendant answered, and, besides controverting the allegations of the complaint, he averred that the road was a public highway, and so had been for more than ten years—and during that time it had been used and enjoyed by the public as such; and that the plaintiff never had any authority or control over the same to lease it or grant any franchise for the same; and also that the contract entered into was without any consideration to support it, and was unauthorized and void.