Weaverville & Minersville Wagon Road Co. v. Board of Supervisors

Sharpsteisn, J. The plaintiff applied to the Superior Court of Trinity County for a writ to compel the respondent to fix the rates of tolls to be taken on the Weaverville and Miners-ville Wagon Eoad, which the plaintiff claims to own.

The defendant filed an answer in which it denied that the plaintiff was the party beneficially interested in the proceedings for obtaining a writ, denied that W. S. Lowden, who made the affidavit, upon which the application for the writ was based, had any right or authority to make said affidavit on behalf of the plaintiff, and alleged that the plaintiff had no interest in said road, and that said Lowden instituted said proceedings for the exclusive benefit of himself and one Eligh. It also denied that the plaintiff was a coiqioration, that it owned said road, that it had a right to collect tolls, that it ivas the duty of the respondent to fix the rates of tolls, and that the plaintiff ever requested the respondent to fix the rates of tolls, and finally alleges that said road is, and since the date of its construction in and about the year 1862 has been, an open public highway, over which the public has the right of passage free and without the payment of tolls therefor.

The findings are contradictory. It is found “ that plaintiff is not a corporation duly, or otherwise organized under the laws of California, and is not the party beneficially interested in this action”; and then it is found: “That the Weaverville and Minersville Wagon Eoad Company was incorporated in 1863, for the purpose of constructing a wagon road between the points specified in the affidavit upon which this action is based. That said company never constructed a wagon road between said [71]points or elsewhere, but that said company repaired and operated a wagon road which had already been built, and collected tolls thereon until about the year 1867.”

There is a finding, “ that the plaintiff is not the owner of the wagon road described in the affidavit upon which this action is based,” and another, “ that from the date of the organization of said company in 1863, to the bringing of this action, the said wagon road has been kept in repair by the company and those claiming through said company, without cost to the county of Trinity or any road district in said county, and that the right of said company, and those claiming under it, to collect tolls on said road has never been disputed until a short time prior to the commencement of this action.” It is also found, “ That plaintiff did not, on the first day of August, 1881, or at any time, demand of said board of supervisors, to fix the rates of toll which plaintiff should be allowed to take, but that demand was made upon said board in behalf of W. 8. Lowden and James Eligh, and such demand was made in the name of the plaintiff; that said board of supervisors did, on the third day of August thereafter refuse, and still refuses to fix the rate of tolls to be taken on said road either for this plaintiff, or for any other person or corporation.”