Bailey v. Dale

Belcher, C. C. This action was brought by the plaintiff as road overseer of a road district in Stanislaus County, to abate a nuisance caused by the obstruction of a public highway in his district, and to recover the sum [36]óf ten dollars for every day the nuisance remained after notice to remove it.

The defendants demurred to the complaint, upon the ground,—1. That the action was improperly brought in the name of the road overseer; 2. That the complaint was ambiguous and uncertain in the description of the alleged highway; and 3. That several causes of action were improperly united, and not separately stated; viz., one to abate a nuisance, another to recover a statutory penalty, and another to recover damages for a willful and malicious injury.

The court below sustained the demurrer, and' the plaintiff declining to amend, judgment was entered in favor of the defendants, from which the plaintiff appealed.

The"action was brought under the supposed authority of section 2734 of the Political Code, as amended in 1883, which reads as follows: “If the encroachment is denied, and the owner, occupant, or person controlling the matter or thing charged with being an encroachment refuses either to remove or permit the removal thereof, the road overseer must commence in the proper court an action to abate the same as a nuisance; and if he recovers judgment, he may, in addition to having the same abated, recover ten dollars for every day such nuisance remained after notice, and also his costs in said action.”

The respondents insist that said action should have been in the name of the county, and in support of this position cite section 2743 of the same code. That section reads:—

“All penalties or forfeitures given in this chapter, and not otherwise provided for, must be recovered by the road overseer or commissioners of the respective road districts by suit in the name of the county in which said road district is situated, and be paid into the road fund of his district.”

[37]In San Benito County v. Whitesides, 51 Cal. 416, the same question was involved, and the court there said: —