McRose v. Bottyer

Gibson, C. Action by plaintiff, as road overseer, to enjoin the defendant from obstructing an alleged public highway. Trial before the court without a jury. Judgment for plaintiff, from which defendant appeals.From the findings it appears that in .the year 1858, and prior thereto, a strip of land leading from the defendant’s brick store, at Thompson’s Flat, in the county of Butte, in a northeasterly direction to and beyond the old school-house” site at said Thompson’s Flat, was and had been used by the residents of Thompson’s Flat as a street or way to and from their places of residence. This use was discontinued after the year 1858, and for. more than twenty years prior to the commencement of this action. On or about the year 1858, the trustees of the Thompson’s Flat school district established and built a public school-house, for public school purposes, at the north -end of the strip of land, and continously thereafter, and until 1884, used the same as and for a public school. In the latter year the trustees sold the land upon.which the school-house was located, and removed the school-house therefrom., From 1858, continuously [124]until the removal of the school-house, the strip of land was used as a means of ingress and egress to and from the school-house by the children attending school, and by the teachers and other persons having business at the school-house. This was the only use made of the strip from 1858 until 1884, and since the latter year it has not been used by the public for any purpose. The right of the public to the use of the strip for the purposes of a highway was acquired by its use as a street until 1858, and thereafter as a way to and from the schoolhouse until 1884. This right has never been declared abandoned or discontinued by the board of supervisors of Butte County, or by any one having authority to so abandon or discontinue the same. The strip of land in question was at all times prior to the year 1887 public land of the United States. In 1887 the defendant acquired the title of the United States government to it, and in 1888 caused the same to be inclosed with a fence, which fence is the obstruction complained of, and which was thereafter removed by the plaintiff as road overseer.

The court, in rendering judgment for the plaintiff upon these facts, evidently proceeded upon the theory, that it having been established that the strip in question was once used as a public way, it continued as such, irrespective of its non-user, because it had not been abandoned by an order of the board of supervisors.

Appellant contends that as the necessity for the use and the use ceased, the right to the use was abandoned by operation of law. By section 2621 of the Political Code, it is provided that “a road laid out and worked and used as provided in this chapter shall not be vacated or cease to be a highway until so ordered by the board of supervisors of the county in which said road may be located.” This section, if it were the only one relating to the same subject-matter, would support the conclusion of the trial court; but there is a provision of section 2619 of the same code which must be con*