Tait v. Hall

Searls, C. This is an action to restrain the defendant, as road overseer of Tehama road district, in the county of Tehama, from opening a road for public use across the land of plaintiff.

The cause was tried by the court without a jury; written findings were filed, upon which a decree was entered in favor of the plaintiff, perpetually enjoining the defendant from entering upon, laying out, constructing, opening, or keeping open a road for public use through the land of the plaintiff, which is properly described.

From this decree, and from an order denying a motion for a new trial, defendant appeals. Under the pleadings and evidence the case turned upon the question whether a strip of land sixty feet in width on the east side of the premises described in the complaint, and running across the same from north to south, was in fact a public road.

The findings on this branch of the case are as follows:—

[151]“ 6. That the said strip of land above described has never been laid out or erected as a road or public highway by order of the board of supervisors, and has never become a public road by use or dedication by any owner of said land or otherwise; nor has any part or portion of plaintiff’s land described in his complaint in this action and in the findings become a public road by order of the board of supervisors, or by use or by dedication or otherwise.

“7. That the said defendant will carry out and perform the acts so threatened by him, unless restrained by the process of this court, and plaintiff will be irreparably injured thereby.

“ 8. That A. G. Toomes, mentioned in defendant’s answer, never, as owner or otherwise, on dr about the year 1873, or at any other time, dedicated said strip of land, or any part thereof, to the public and for a public highway, either by spoken words of said A. G. Toomes or by his conduct.

“ 9. That the said strip of land was never accepted by the public as a highway, and the public since 1873, or since any other date, have not traveled upon or over said strip of land or any part thereof, or used the same continuously or at all as a public highway.”

Appellant attacks these findings numbered 6, 7, 8, and 9, upon the ground that they are not supported by the evidence, and are contrary thereto.