Geary v. Bd. of Supervisors of San Diego

Garoutte, J. — The proceedings upon which this action is based were commenced before the board of supervisors of San Diego county for the purpose of creating a private road. By a writ of review these proceedings were brought before the superior court and there held to be valid. This appeal is taken from such adjudication.

1. It appears, both by the petition and the order of the board of supervisors laying out the road, that the proceedings were inaugurated for the benefit of one [533]J. F. Wilson, in order that he might secure a way of access to his farm. Wilson is not one of the signers to the petition for the road, and it is insisted that, under section 2692 of the Political Code, one party at least who is directly benefited by the laying out of the road must sign the petition. Such a course certainly would be the better practice, and it is somewhat anomalous that Wilson, the party directly interested, did not indicate his assent to the proceedings by attaching his name to the petition; but we think the proceeding is void for other reasons, and therefore do not find it necessary to give a construction to section 2692 of the Political Code in this regard.

2. As is said in Hill v. Board of Supervisors, 95 Cal. 242, the mode prescribed by the statute for the laying out of roads is to some extent the measure of the power of the board of supervisors. The board cannot take a step until a petition is filed, which petition in form must be in substantial compliance with the requirements of the statute. But even when the petition is filed some thing more must be done before the board can act. A bond must be filed. Section 2683 of the Political Code declares that a bond must accompany the petition, and it is only when the petition and bond are presented to the board of supervisors that power is vested in it to take affirmative action. A bond in substantial compliance with the statute is as necessary to vest the board with jurisdiction to act as is a petition in substantial compliance with the statute. At the time the petition was presented a bond in the amount of fifty dollars accompanied it, which recited: “The condition of this obligation is such that, whereas James F. Wilson and others have petitioned the board of supervisors of San Diego county, state of California, for a private highway, the probable cost of viewing, laying out,” etc. By its face the bond appears to be given upon a petition for a private road by James F. Wilson and others, and in no way refers to the petition upon which the proceedings in this case were inaugurated. Wilson is not a signer