Huffman v. Hall

California Supreme Court Mar 27, 1894 No. No. 18029Published

Before: Beatty, Harrison

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Holding. The court held that the 1874 amendment to section 2619 of the Political Code repealed the original provision regarding the creation of highways by five years of public use, and that such use did not establish a public highway in the absence of an owner's intent to dedicate the land. The court further held that the amendment was not limited in its repealing effect by the act's application to specific counties, thereby overruling prior contrary precedent.

Issues

Whether the 1874 amendment to section 2619 of the Political Code repealed the original provision establishing highways by five years of public use.
Whether the public's use of fenced private land constitutes a dedication to public use without evidence of the owner's intent.

Disposition. affirmed

Quotations verified verbatim against the opinion

“When section 2619 was, in 1874, “ amended to read as follows,” the section, as it had previously stood upon the statute book, ceased to have any statutory force, and was no longer a portion of the laws of the state.”

“Dedication must be made by the owner of the land, and exists only when he has manifested some intention to make the dedication.”

“The fact that the land had been inclosed by a fence would show that any use of it by the public was only permissive”

Synopsis

Roads and Highways—Public User—Dedication—Evidence—Offer of Proof.—Where a road has not been laid out as such by the public, it cannot he held to be a public highway by virtue of section 2618 of the code, unless it is shown to have been dedicated or abandoned to the public by the owner of the land; and an offer to prove its use by the public for the period of five years, accompanied by a statement of the party offering the evidence that he did not expect to prove any intention on the part of the owner of the land to dedicate the land as a public highway, except by proving its use by the public, is properly excluded.

Id.—Intention to Dedicate Essential—Effect of User.—Dedication exists only where the owner of the land has manifested some intention to make the dedication; and where the dedication of a highway is sought to he established by user, it must appear that such user was with the knowledge of the owner, and with his consent, or without objection on his part.

Id.—License to Use Way—Inclosure by Fence—Rebuttal of Dedication.—The fact that the land had been inclosed by a fence would show that any use of it by the public for a way was only permissive, and is strong evidence in support of a mere license to the public to pass over the designated way, and in rebuttal of a dedication to public use.

Id.—User for Five Years—Amendment of Code—Repeal of Original Section—Case Overruled.—The provision of section 2619 of the Political Code, as it originally stood, June 1, 1873, providing that “all roads used as such for a period of five years are highways,” was superseded and repealed by the amendment of March 30, 1874, although the amendatory act was made applicable to certain counties only, and the original section could not, after the date of that amendment, he invoked as an authority for the creation of a highway by mere user in any county of the state. (Qloster v. Wade, 78 Cal. 407, overruled.)

Id.—Constitutional Law—Republication of Amendment—Repeal— Saving Clause—Limitation of Amendatory Act.—Under section 24 of article IV of the state constitution, which provides that an “act revised or section amended shall he re-enacted and published at length as revised or amended,” when a section of the code is “amended to read as follows, ” and the amended section is published at length, without any saving clause continuing the original section in force for any purpose or to any extent, the effect of the amendment is to repeal the section as it originally stood, and it ceases to have any statutory force; and a section of the amendatory act merely providing that the amendment shall be applicable to certain counties named does not operate as a saving clause to continue the original section in force in other counties of the state.

Opinion — Harrison

Harrison J. The plaintiff is the owner of a tract of land in Merced county, lying to the east of the Snelling road, and bounding upon Bear creek at the south. The defendant was the road overseer of road district Ho. 1 of Merced county, and on the 17th of January, 1889, destroyed and removed about 60 feet of a fence which extended from Bear creek northerly between the Snelling road and the plaintiff’s land, under the claim that it was an obstruction to a public road along the northerly bank of Bear creek. The plaintiff brought this action for damages for the alleged trespass, and to enjoin the defendant from further interfering with the fence. Judgment was rendered in his favor, and the defendant has appealed.

The title of the plaintiff to the land was not questioned at the trial, and the finding of the court that the land had been, for a period of more than ten years prior to January, 1889, inclosed along the Snelling road with a good and substantial fence is not excepted to. The defendant, however, sought to show that the public had traveled over this strip of land and used the same as a public highway for a continuous period of more than five years since the 10th of January, 1873, and claimed that by reason of such user it had become a public high[29]way. In this connection he stated that he did not expect to prove that the owner had shown any intention to dedicate the land as a public highway, except by showing such use, and it was admitted that no compensation had been paid to the plaintiff. Upon the objection of the plaintiff this evidence was excluded, and this ruling is now assigned as error.

The Political Code went into effect January 1, 1873, and section 2619 thereof provided that: “Hoads laid out and recorded as highways by order of the board of supervisors, and all roads used as such for a period of five years are highways.” In 1874 this section was amended by striking out the words “and all roads used as such for a period of five years,” and the section as thus amended was in force upon that subject until the entire chapter upon the subject was repealed in 1883, and a new chapter substituted in its place, by which it is declared in section 2618: “ In all counties of this state public highways are roads, streets, alleys, lanes, courts, places, trails, and bridges laid out or erected as such by the public, or, if laid out or erected by others, dedicated or abandoned to the public, or made such in actions for the partition of real property.”

Huffman v. Hall

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Synopsis

Opinion — Harrison

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