Smithers v. Fitch

Foote, C. This action was for an injunction restraining the defendants from entering upon the plaintiff’s premises, and taking down or removing his gates, or in any manner interfering with his premises, and for damages for acts of that kind already done. The case was tried before the court without a jury; the plaintiff had judgment for an injunction as prayed for, and damages in the nominal sum of one dollar and costs. The defendants appeal from the judgment, and an order denying a new trial.

The contest arose over the right asserted by one of the defendants, Fitch, a road-overseer or road-master, acting under the authority and by the direction of Gosling, as a member of the board of supervisors of Napa County, to remove the gates of the_ plaintiff from what was alleged to be a public highway, and which right, so claimed, had already been twice exercised by the road-overseer.

[155]The defendants asserted that, some time in the month of August, 1863, there was laid out and constructed over the lands now owned by the plaintiff a public road and highway, which, for more than twenty years next ensuing from and after the year above mentioned, was used as such by the public, with the acquiescence of the plaintiff and his predecessors; that about 1885 the plaintiff obstructed the road at a point where it runs over or upon his land, and the acts of taking down the gate complained of were to remove an obstruction from the public highway, which it was their lawful right to do. They defend the alleged trespasses on the grounds that the gate was an obstruction on a public road, which had been duly established by the board-of supervisors, and had become a public road, if not so established, by the user of the public. It is claimed by the appellants,—

1. That the evidence shows, contrary to the findings of the court, that the road thus obstructed by the plaintiff was duly and legally declared a public highway by the board of supervisors of Napa County.

2. That even conceding it was not so declared, that the evidence is conclusive that the road became a highway by the use of the public of it as such.

The statute under which it is asserted the board of supervisors attempted to declare a public highway is to be found in the acts of 1861, pages 389 et seq., as amended May 12, 1862. (Stats. 1862, p. 525.) That act requires, in section 1 thereof, that three notices shall be posted in public places in the county, and one such notice shall be posted “on the door of the room in which the board of supervisors of the county hold their meetings, at least thirty days previous to the time of making such application, which application shall only be made at a regular meeting of” such board, and that in such notice there shall be specifically set forth “ the place of beginning, the intermediate points, if any, a general description