People v. Davidson

Belcher, C. C. This action was brought by the attorney-general, on complaint of El Dorado County, to have a road, claimed by defendant, adjudged to be a public highway, and to enjoin the defendant from demanding or taking tolls from travelers thereon, or in any [167]manner interfering with or obstructing travel over the same by the public.

The ease was tried by the court, and the findings and judgment were in favor of plaintiff. The defendant moved for a new trial, and his motion being denied, appealed from the judgment and order.

The material facts of the case are as follows: In 1861 the defendant constructed, in El Dorado County, a road about one and a half miles long, upon land of which be then had possession, and of which he subsequently acquired the title in fee. He constructed and has ever since maintained this road wholly at his own expense, for the purpose of using it as a toll-road. And after its construction, up to the time of commencing this action, the road was continuously used for public travel by foot-passengers and passengers with animals and vehicles, without interference by defendant, except that he always claimed the right to demand and receive, and did demand and receive, tolls for the privilege of passing over it. In 1864 defendant became the owner of, and thereafter resided in, a house standing by the side of the road, on the front side of which the words “toll-house” were painted. Hear the house he erected a sign on which there was an inscription headed “rates of toll,” and followed by a schedule of charges. That sign was kept up until July 8, 1878, and until that time defendant demanded and received from persons passing over the road tolls according to the rates shown on the sign. On the 8th of July, 1878, defendant made application to have the hoard of auditors of El Dorado County fix the rates of toll on his road, and thereupon the board made an order, which reads as follows: “How comes Thomas Davidson and asks the board that the rates of toll for his toll-road, commencing at the Old Mountain House and running to Buckeye Flat, being about one and one half miles in length, be fixed; whereupon the board fixes his rates of toll as follows,” etc.

[168]After the making of this order defendant demanded and collected tolls from all persons passing over his road in accordance with the rates so fixed. No other order in reference to this road was made until the second day of February, 1886, when the board of supervisors of the county passed an order rescinding the aforesaid order of the board of auditors.