Forsyth v. Dunnagan

Beatty, C. J. This is an action to enjoin the defendants— the members of the board of supervisors and a district road-master of Fresno County— from opening a road through the land of the plaintiff.

By the judgment of the superior court a temporary injunction was made perpetual, and defendants appeal from the judgment, and from the order denying their motion for a new trial.

There is but little controversy as to the facts of the case. It appears that in the year 1878, F. Roeding was the owner of section 32 of a certain township in Fresno County. In conjunction with the owners of the adjoining sections, 31 and 32, he caused to be made and recorded a map of the entire tract, by which it was subdivided into twenty-acre lots, with streets and roads extending through it north and south, and east and west. On this plat or map so recorded, the tract was designated as the “ Nevada Colony,” and the design was to sell the lots to settlers. Besides marking and recording the map, the owners caused ditches to be dug on each side of the [440]streets as surveyed, thus marking their location on the ground, and in January, 1879, they united in a deed to the county of Fresno, by which they conveyed the roads so laid out to said county. But said conveyance was upon the express consideration that the county should “accept, declare, duly establish, and use the same as public highways.” Among the roads so laid out and conveyed was a strip of fifty feet in width extending north and south between the southwest and southeast quarters of said section 32. The county never in any way accepted said conveyance or did anything in compliance with its conditions until April, 1888, at which time the board of supervisors adopted a resolution declaring said streets and avenues public highways. At a subsequent date they ordered the county surveyor to lay out a road twenty-five feet on each side of the half-section line, extending north and south through said section 32, and thereafter directed the road-master of the district to open the road to the public, which he was proceeding to do in obedience to such direction when enjoined in this action.

The plaintiff herein is owner of the southwest quarter of section 32, by grant from F. Roeding dated December 6, 1881. In this grant the land conveyed is described as being a portion of the Nevada Colony, and it is made “ subject, nevertheless, to the right of way of the public over such portions of the land herein granted as may fall within any road laid out on such land,” etc. The southeast quarter of said section was conveyed to one Pugh, subject to the same reservation or exception. It does not appear that at the date of these conveyances the street or road in question had ever been opened or actually used by the public as a highway, or that Roeding or the proprietors of sections 31 and 32 had ever made any conveyances of lots or land in the Nevada Colony according to the recorded plat. An offer was made at the trial to prove the conveyance of a lot in section 33 according to said plat, but at what date — whether before or after the conveyances to plaintiff and Pugh — does not appear. Such being the case, plaintiff