Freshour v. Hihn

California Supreme Court Aug 31, 1893 No. No. 14941Published

Before: Haven

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Holding. The court held that a road established only by public use or abandonment, and not formally recorded as a highway by the board of supervisors, does not qualify as a highway 'duly laid out or erected' under the Political Code, thereby precluding the recovery of statutory penalties for obstructions. Additionally, the court held that a plaintiff cannot recover jury fees as costs if they neither paid nor incurred liability for such fees.

Issues

Whether a road established by public use, but not formally recorded, constitutes a highway 'duly laid out or erected' for the purpose of recovering statutory penalties for obstruction.
Whether a plaintiff may recover jury fees as costs when the parties agreed to a bench trial and the plaintiff incurred no expense for the jury.
Whether the description of a highway in a complaint is sufficient if it specifies the width and the course of one line.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“until so recorded such a highway cannot be said to have been “duly laid out or erected,” so as to authorize a recovery of the statutory penalty given by section 2734 of the Political Code.”

“The plaintiff neither paid nor incurred any expense because of the attendance of the jury, and we are not aware of any law which entitles him to recover from defendant the amount of the attendance fees of such jurors.”

Synopsis

Highway—Description of Eoad—Complaint fob Obstruction—Support of Judgment. — When in describing the location of a road the width is given, and but one of its lines is particularly described by course and distance, tlie line so described will be deemed to refer to the center line of the road in the absence of anything in other parts of the description tending to indicate a contrary intention ; and where a complaint for the obstruction of a highway described it as forty feet wide, commencing at a certain point named, and following the course and distance of a given line to the line of average high tide in a given bay, the description is sufficiently certain to support a judgment abating the obstruction.

Id__Highway by User in Santa Cruz County—Dedication Immaterial—Finding.— Under section 52 of the act of March 31, 1876, providing for the establishing and maintaining of roads in Santa Cruz County, the use of a road by the public for a period of five years next preceding the passage of the act, constituted such road a public highway, regardless of whether or not the owner of the land in permitting such use intended thereby to dedicate the land used as a public highway; and a finding that a road in that county has been traveled and used by the public generally as a public road or highway “ for more than twenty years continuously immediately preceding the 1st of May, 1890,” is a sufficient finding that the road in question was a public highway.

Id. — Penalty fob Obstruction Inapplicable—Construction of Code.—The right of a road overseer to recover the penalty of ten dollars for each day an obstruction exists upon a public highway, given by sections 2731, 2732, and 2734 of the Political Code, applies only to the case of a highway established by the proper officers in the manner prescribed by law, and does not extend to a case where the highway is only such by user or abandonment to the public, and has not been recorded as a highway.

Id.—Highway Duly Laid Out or Erected. — The words “ duly laid out or erected,” as used in section 2731 of the Political Code, have reference to the formal and official action which the law enjoins upon those charged with the duty of establishing public highways; and a highway “duly laid out or erected,” within the meaning of that section, is one which has been established by the proper officers in the manner prescribed by law.

Id. — Remedy fob Obstruction in Highway by Hser—Nuisance. — The only remedy which the public has for an obstruction in a highway which exists only by user is an action to remove the obstruction as a nuisance.

Id.—Evidence — Ordinance Directing Record—Defect in Pleading.—In an action by a road overseer to have an obstruction placed by the defendant in a public highway abated as a nuisance, where the complaint does not allege the encroachment to bo upon a highway duly laid out or established by law, it is error for the court to admit in evidence an ordinance of the board of supervisors directing the clerk to record the road as a public highway.

De Haven, J. The plaintiff is the road overseer of Soquel Road District, in Santa Cruz County, and this action was commenced by him to have an obstruction placed by defendant in a public highway in that district abated as a nuisance, and also to recover from defendant the sum of ten dollars for every day the obstruction remained after he had received notice to remove it.

The judgment of the superior court was in favor of plaintiff, ánd was to the effect that the obstruction complained of be' abated as a nuisance, and that plaintiff recover from defendant in addition to the costs of the action the sum of eight hundred and seventy dollars, the penalty demanded in the complaint, because of defendant’s failure to remove the obstruction. The defendant appeals.

1 1. The objection is made that the complaint is fatally defective in its description of the highway defendant is charged to have obstructed. The complaint alleges that the highway referred to is forty feet wide, and that it commences at a certain point named, thence following the course and distance of a given line “to the line of average high tide to the bay of Monterey”; but it is not directly averred whether the land thus described is the center or one of the side lines of sucli road. We think this general description sufficient. When in describing the location of a road the width is given, and but one of its lines particularly described, as in the complaint here, the line so described by its course and distance will be deemed to refer to the center line of the road in the absence of anything in other parts of the description tending to indicate a contrary intention. (The People v. The Commissioners of Highways of Redhook, 13 Wend. 310.)

[4452]. The court below found “that the road mentioned and described in the complaint has been traveled and used as such by the public generally, as a route of travel for the ordinary uses and purposes of a public road or highway, for a period of more than twenty years continuously immediately preceding the first of May, 1890.” This finding was within the issues made by the pleadings, and is a sufficient finding that the road in question was a public highway under the provisions of section 52 of the act approved March 31, 1876, entitled “An act to establish and maintain public and private roads in the county of Santa Cruz,” and which declares that “roads used as public roads for a period of five years unobstructed, next preceding the passage of this act, are roads or highways within the meaning of this act.” Under this statute, which defendant concedes is applicable to this case, the use of the road by the public for the period named, without any reference to the question whether the defendant in permitting such use intended thereby to dedicate the land used as a public highway, is the controlling fact upon which the right of the public to continue such use is made to rest. (Bolger v. Foss, 65 Cal. 250; McRose v. Bottyer, 81 Cal. 125.) Upon the question of fact thus found by the court below there is a substantial conflict in the evidence, and under the rule which has been often declared here the finding will not be disturbed by this court.

Freshour v. Hihn

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