Coulterville & Yosemite Turnpike Co. v. State

Fitzgerald, J. This action was brought under the authority conferred by an act of the legislature, approved March 31, 1891, and is entitled, “An act to enable the Coulterville and Yosemite Turnpike Company, a corporation, to sue the state of California for the loss and damáge suffered and sustained by said corporation by the construction of a road by the Yosemite Turnpike Road Company, under and by virtue of an act of the legislature of the state of California, entitled ‘An act granting the right of way to the Yosemite Turnpike Road Company over the Yosemite grant,’ approved February 17, 1874, and for the relief of said Coulterville and Yosemite Turnpike Company."

The facts stated in the complaint as constituting plaintiff’s cause of action are the same as those recited in the preamble of the act referred to, and are alleged as follows:

“1. That the commissioners to manage the Yosemite valley and Mariposa big tree grove, by their resolution adopted the sixteenth day of July, 1872, together with the written agreement dated the thirteenth day of August, 1872, agreed with plaintiff, that plaintiff should have the exclusive right to construct and maintain a wagon road on the northerly or Coulterville side of the Merced river, from a point on or near Crane Flat, past the line of survey of that reservation from the public lands of the United States known as the Yosemite grant, to and [323]upon the level of the Yosemite valley, and should have the exclusive right to maintain a road on said side of the Merced river, and collect tolls thereon for a term of ten years from the completion thereof; whereupon plaintiff, in consideration of said agreement, and in pursuance of said resolution and agreement, proceeded to construct said road, and the same was completed on the eighteenth day of June, 1874, and said commissioners on the third day of July, 1874, accepted the same as so completed

“ 2. That in the year 1874 the legislature of the state of California passed an act entitled, ‘An act granting the right of way to the Yosemite Turnpike Road Company to construct a toll-road over the Yosemite grant,’ approved February 17, 1874, and under and by virtue of said act said Yosemite Turnpike Road Company constructed and completed a road on the-northerly side of the Merced river, from a point near Gentry’s station to a point on the level of the Yosemite valley near El Capitan, which said road was completed in the month of July, 1874; and thereupon the said Yosemite Turnpike Road Company opened the said last-mentioned road for travel, and the same was continuously traveled by the public thereafter.