Culbertson v. Kinevan

Sharpstein, J. This action is brought under section 31 of an act to authorize the formation of corporations for the construction of plank and turnpike roads, passed May 12, 1853, which provides that every toll-gatherer who demands and receives from any person more than he is authorized to collect, for each offense forfeits the sum of ten dollars to the person aggrieved. The case was tried by the court, which found that in 1868 a corporation called “ the Santa Barbara and Santa Ynez Turnpike Road Company,” to continue for twenty years, was formed under the act of the legislature of May 12, 1853; and that said corporation in 1869 constructed and opened its road to the public for travel, and it has been kept up and used for that purpose ever since; that for more than fifteen years the defendant has been and still is the authorized toll-gatherer on said road.

That on the thirtieth day of November, 1883, the plaintiff passed over said road with two horses and a wagon, and at the “San Marcos Pass,” or “Pat’s Station,” so called, at the toll-gate on Santa Ynez Mountains on said road and in the county of Santa Barbara, paid to the defendant, as toll-gatherer of said road, $1.50 for toll for passing over said road, without any objection whatever; that plaintiff knew then and had long known the toll-road, and had frequently passed over it before, and had paid the accustomed rate of toll according to the rate of toll which he saw posted up at the gate; that defendant then appeared at the toll-gate and received said toll as toll-gatherer for said corporation, as he had been ac[70]customed to do in all other cases, and in the belief that he had good right to collect and receive the same.

That said sum so paid by plaintiff for toll was the exact amount which plaintiff and others had theretofore paid defendant for toll for the same team, to wit, two horses and a wagon, and the same amount which defendant had collected for such teams during all the time he had been such, toll-gatherer on said road, and the exact amount prescribed and fixed by the board of supervisors of Santa Barbara County for toll on said road by its order made on the fourth day of August, 1869, and entered on the minutes of said board on that day.

That no other order relating to any of the matters mentioned in said order, or to the tolls to be charged by said turnpike company, was passed by said board of supervisors before the commencement of this action, to wit, on the twenty-eighth day of September, 1884.