Myers v. Daubenbiss
Before: Belcher
Synopsis
Injunction — Prescriptive Title ■—Unlawful Opening of Road—Parties— Joinder of Road Overseer and Supervisors— Joint Tres'pass. — A complaint showing a prescriptive title in the plaintiff to a tract of land hy adverse possession under a judgment of partition, and alleging that there has never been any road or highway over or across the premises, and that one of the defendants, who is the road overseer of the district, and who is insolvent, instigated and abetted by the other defendants, who are the supervisors of the county, had trespassed upon the premises hy tearing down the inclosure of plaintiff, digging up the soil, etc., for the purpose of constructing a road across the land, and would continue such acts to the irreparable injury of plaintiff, unless restrained by the court, states a cause of action for an injunction against the defendants, and is not liable to a demurrer for misjoinder of parties. The supervisors, appearing, under the averments of the complaint, to he joint trespassers with the road overseer, were properly joined with him as defendants.
Id. —Judgment of Partition — Establishment of Public Road — Jurisdiction of Superior Court — Cessation of Highway by Non-user. — A judgment of partition rendered in 1873, purporting to establish a public road or highway across the partitioned premises, cannot justify the supervisors and road overseer in proceeding in their official capacity to open and construct the road fourteen years afterward, if it has never been before opened, and the plaintiff has all the time since the partition judgment occupied and held the premises adversely under inclosure and paid the taxes thereon; and it is immaterial whether the right of plaintiff rests upon the want of jurisdiction in the superior court to establish a
road prior to the amendment of 1874 to section 764 of the Code of Civil Procedure, or upon the provisions of section 2620 of .the Political Code as that section stood when the judgment was entered in 1873, and continuously thereafter until 1883, providing that “ a road not worked or used for the period of five years ceases to he a highway for any purpose whatever. ”
Belcher, C. C. The plaintiff brought this action to ■ obtain an injunction restraining the defendants from laying out, opening, or constructing a public road, or any road, over, across, or upon a certain described tract of land situate in Santa Cruz County, or from opening, breaking, or tearing down the inclosure about the said tract of land, or in any manner entering thereon for the purpose of making such road.
The court below granted the relief prayed for, and the defendants appeal from the judgment, and from an order denying them a new trial.
It is alleged in the complaint that on the eighteenth day of August, 1873, an action for the partition of the rancho San Andreas was pending in the district court in and for the county of Santa Cruz, wherein Edward Briody was plaintiff, and Titus Hale, Francis Larkin, and others were defendants; that on the day named a judgment was duly given, made, and entered in the action by ■which the tract of land described in the complaint in this action was allotted and set apart to the said Larkin in severalty; that under and by virtue of this judgment Larkin entered upon the premises so set apart to him, [3]claiming and having the title thereto, and thereafter, continuously up to October 21, 1882, had and held the actual, open, notorious, exclusive, and adverse possession of the whole of said premises, and paid all taxes levied or assessed thereon; that on the day last named Larkin sold and conveyed the whole of said premises to this plaintiff, who thereupon, under and by virtue of his deed of conveyance, entered upon the same, and has ever since had, held, and claimed the actual, exclusive, open, notorious, and adverse possession thereof, and has paid all taxes levied or assessed thereon; and that there is not, and never was, any road or highway across the said premises, or any part thereof, but that the same at all times named have been inclosed by a substantial fence.
It is further alleged that in December, 1886, and again in January, 1887, the defendant Freshour, who was the road overseer of the district in which the plaintiff’s land was situate^ was insolvent, and was “instigated thereto and aided and abetted” by the other defendants, who were the supervisors of the county, broke and tore down plaintiff's inclosure and entered upon his land, dug up and removed the soil, trampled down and destroyed the grass and other crops growing thereon, and cut down and removed trees standing thereon, with the avowed intention and purpose of laying out, opening, and constructing a public road over and across said land; that the acts of defendants are trespasses, which, if continued, will do great and irreparable injury to the plaintiff, and that they will be repeated and continued unless restrained by the court.
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