No. 2,363.

#### JAMES B. DAMRELL, Respondent, *v.*BOARD OF SUPERVISORS OF SAN JOAQUIN COUNTY, Appellants.

Pkactice. — Notice op Appeal. — A notice of appeal given by *the*attorney of record is sufficient.

Public Roads. — Establishment op. — Paktx to Pboceedinss fob. — A person through whose landá a proposed road will pass is beneficially interested, and is a proper party to contest the legality of the proceedings for the establishment of the road.

*155Idem. — Supebvisobs Exebcise Judicial Functions. — It is tine, as a matter of law, that a Board of Supervisors in laying out a public road, exercises judicial functions.

Idem. — Authobity to take Pbivate Pbobeety eoe Public Use must be Steictly Pubsued. — The authority granted to a Board or tribunal to acquire private property for public purposes-by special proceedings, and not with the consent of the owner, must be strictly pursued or the pro - ceedings will be void.

Idem. — Duty oe Yiewebs. — The viewers of a road, appointed under the Act of April 19th, 1859, must view and mark out the line of the road as proposed in the application, and state the probable cost of its construction, and must also give notice to the owners of the land through which the proposed road will pass, of the time and place of the meeting of the viewers in accordance with the provisions of the Act.

Idem. — Application bob. — The application must state that the proposed road will be located within some portion of the county in which the application is made.

Appeal from tbe District Court of tbe Fifth District, San Joaquin County.

Tbis is a proceeding based upon a petition addressed to tbe Judge of tbe District Court, praying tbat a writ of *cer-tiorari*issue, directing tbe Board of Supervisors of San Joaquin County to certify up to said Court tbe papers and proceedings pertaining to tbe establishment of a certain highway in said county.

Tbe petitioner, who is tbe owner of a portion of tbe land through which a proposed road passes, alleges in bis petition tbat it nowhere appears in tbe petition to tbe Board of Supervisors to establish said road tbat tbe proposed road is in tbe State of California; tbat tbe viewers failed to mark out said road and to report its probable cost, and to comply with tbe law. in such case made and provided; tbat it nowhere appears in tbe proceedings of tbe Board of Supervisors tbat said Board notified tbe known owners of tbe land over which it was proposed to construct said road, of tbe time or place of meeting of tbe viewers, either personally or otherwise, and tbat tbe Board of Supervisors, by its order establishing said road, failed to comply with material requirements of tbe Act of April 19th, 1859, “Concerning roads and highways in tbe counties of Tuolumne, San Joa*156quin, Plumas and Siskiyou,” under wbicb tbey acted, and thereby exceeded its jurisdiction.

The Court granted the petition and ordered the writ to issue as prayed for.

At the bearing, defendant moved to dismiss the- petition and writ upon the following grounds:'

1st. That it does not appear from said petition, nor is it averred therein, that the proceedings, sought to be reviewed were judicial in their character.

2d. That it does not state or show in what respect said Board exceeded its jurisdiction in making the order referred to' in the petition.

The Court denied the motion, and after hearing the case upon the return, found that the Board of Supervisors exceeded its jurisdiction in establishing said highway, and rendered judgment, ordering “that all the proceedings of said Board subsequent to the appointment of viewers be annulled, vacated and rendered wholly void.” From this order and judgment the Board has appealed.

Counsel for respondent moved this Court, to dismiss the appeal, on the ground that the notice of appeal was not given by the President of the Board of Supervisors or the District Attorney.

The other facts are stated in the opinion.

*W. L. Dudley,*for Appellants.

*First*— The petition on which the application for the writ is founded, does not state facts sufficient to authorize the issuance of the writ.

1st. Because it does not allege or show that the respondent was “beneficially interested” in its issuance, or that he has sustained any injury or injustice whatever by the action of the Board. (Practice Act, Sec. 457; *Strong*v. *County Commissioners,*31 Maine, 578; *Rand*v. *Tobis,*32 Id. 450; *Darkness v. Waldo County Commissioners,*26 Id. 353; *Perry*v. *Lovett,*24 Texas, 359; *Clifford*v. *Waldrop,*23 Ill. 336; *McKenzie*v. *Pitner,*19 Texas, 135; *People*v. *Berne,*44 Barb. *157N. Y. 467; *Starkweather*v. *Seeley,*45 Id. 164; *Finch*v. *le~ hama Oo.*29 Cal. 453)

2d. Tbe petition does not state in wbat particular tbe Board exceeded its authority. *(Welch*v. *Bagg,*12 Micb. 8 Cooley, 41; *Chambers*v. *Lewis,*9 Iowa, 1st "With. 583; *Wraiion*v. *Wilson,*22 Cal. 465.)

' 3d. Tbe petition does not allege or show that tbe proceedings sought to be reviewed were judicial in their character.

*Second*— The respondent has no right to complain on account of changing the line of the proposed .road on land other than his own, nor would such action vitiate the order of the Board. It could not possibly amount to an excess of jurisdiction; it might be irregular, but nothing more. *(Harhnessv. Waldo County Commissioners, supra.) A*mere irregularity or technical error or informality is not enough to invalidate the order of the Board laying out a road, and in fact will not be inquired into on the return to the writ. The Court goes to the extent of reviewing the proceedings of the Board of Supervisors to determine whether the Board has exceeded its jurisdiction, and there the review terminates. *(Central Pacific B. B. Co.*v. *Board of Equalisation of Placer County, People v. Burney,*29 Cal. 459; *Peoples. Johnson,*30 Id. 101; *People ex. rel. Agneio*v. *Mayor of N. 7.*2 Hill. 10; *People ex rd. Bodinev. Goodwin,*1 Selden, 568; *Ewing*v. *Thompson,*43 Penn. 372; 30 N. Y. 72.)

*Byers & Elliott,*for Respondent.

The law for the condemnation of land for public use must be strictly followed. *(Sanford*v. *Worn,*27 Cal. 171.)

Scarcely a single provision of the law is complied with, from the filing of the petition for a highway, up to the time of the final order of the Board.

Rhodes, C. J.,

delivered the opinion of the Court.

The motion to dismiss the appeal, on the ground that the notice of appeal was not given by the President of the *158Board of Supervisors, or the District Attorney, must be denied, as the notice was given by the attorneys of record.

The defendants moved to dismiss the writ, and the first ground now urged, is that it does not appear that the plaintiff is “beneficially interested” in the subject matter of the proceeding. The objection that this point cannot be considered now, because not presented in the Court below, may be waived, as we are of the opinion that the point is not well taken. The petition shows that the proposed road will run over the plaintiff’s land, and he is interested in the matter of the compensation for his land, which may be taken for the use of the road, it not appearing that he has granted the right of way, either with or without compensation. As the proposed road will pass over his land, he is interested in having the road located in such manner, that it will be legal and valid when it is declared a public highway.

It is sufficiently shown in the petition in what particulars the Board exceeded its authority. It is unnecessary to allege that a Board of Supervisors, in laying out a public road, exercises judicial functions, for that is true as matter of law. There are many valid objections to the proceedings before the Board, which are not mere matters of error. It is axiomatic law, that the authority granted to a Board or tribunal to acquire private property for public purposes, by special proceedings, and not through the will or consenl of the owner, must be strictly pursued or the proceedings will be void.

The Court having annulled the proceedings subsequent to the appointment of the viewers, the proceedings prior to that time need not be noticed.

The viewers are required by the statute (Stat. 1859, p. 368), among other things, to view out and mark the line ol the road, and report the probable cost of its construction. They viewed out a road which diverges, at some points, from the proposed road; they have not reported that they marked out the line of the road, nor stated the probable cost of its construction. It does not appear thai *159tbe owners of tbe land, over wbicb tbe proposed road will run, were notified of tbe place of meeting of tbe viewers, as is required by tbe statute.

Tbe Board exceeded its authority, in establishing tbe road on a line wbicb deviated from that- of tbe proposed road,

Tbe petition does not state that tbe proposed road will run through any portion of tbe county of San Joaquin, or even of this State. For this defect, tbe Court would have been justified in vacating tbe entire proceedings.

Judgment affirmed.