The daily Butte record., 1858-08-06
Interesting Opinion.


State Of California, ! County Court.
County OF Butte June Term, 1858.
The People OF the State California vs.. Thos.
8. Wright.
This cause came into this Court nm appeal
from Justices Court Of this County, on a
statement "f the evidence se,tled bv said
Justice. The defendant who appealed TO
this Court from tn, Court below. where n
Judgement was entered against him that he
pay fine OF one dollar AID five dofars
day for thirteen days while said Highway in
question remained ob,tructed after no ice
was served on defendant. aud. for costs Of
this snifv now here asks this Court TO reverse
tie judgement ~ the C0art hekw, on the
statement Of evidence herein aled, taken in
the Court below. and To enter n judgement
IN tav' Of defendant. TINT he 90 hence With
out day with proper costs Of this action.
This is proper motion in this case because
First, This Court has jurislicliction ( that
character Of cases among which this cnse il
cinssed, 10 try '.de novo" Second 1t would
have been Legitimate and within the rule Of
practice. for the defendant to have moved
The Court below to have opened up and set
aside its judgement, on the evidence. If he
believed that the judgement was not justi
ned by the facts or evidence in the case aud
Third, An appeal. in criminal case,
may be taken from a Justices to this Court,
on statement Of evidence alene, or On u
statement Of both evidence and errors Of IN W
occurring IN the Court below and then and
there excepted to; aud if he could do this in
the Court be'ow, he can most nssuredy do
70 In this Court if he comes before it, on a
statement of the evidence above.
The complaint or charge a.ainst defend
ants IL. that he obstructed n highway in
Butte county. To this charge. defendant
plead mo guilty :" hut on the trial Of said
cause, admitted that be did put the obstruc
ton complained Of in the place alleged,
bnt denies that the same is q public high
wav.
1t is not necessary therefore that ! shou d
examined the evidence, in gross or in detail
% find out the mere fact whether defend.
ant did the act comrained Of; but merely
to find out whether the act when done, con
stituted n public offence; and herein TO find
ont whether the road in question (Which it
is alleged was ohsiructed by defendant) was
q public highway. in the legal acceptation
that term, and 'ucb an one as private par-
ties might not obstruct, and road overseers
are bound to remove Instructions from, or
have the same done.
The statute, page 651 Woods Digest Sec
D. provides that when petition is presented
TO the Board Of Supervisors praying for q
public read or cast read, to be laid out 10
their county, notice thereof shall I've given to
the parties owning the land over which said
road is to run
l must atop short on the law at this point,
and consider the interest Of the law makers
md OF this law, which so provides. And
reason answers at once. IL IL, that, IL any
one owning land over which such intended
road would run, would thereby he rjured.
that fact may be made known TO the said
Board. In order that they m"y determine ac.
cordi x to law, whether the wants Of the
public, which prompted the demand for
such read, are ofsuch import. as to justify
the payment Of just compensation for the
private property thus to be taken for public
use,
The same law then goes on to say that IL
objections are made by one or more parties
{ wpers) the same shall be determined by
them at their next regular meeting; and il
they be If opini' n that such road is pessary.
they shall appoint viewers 10 view out aud
locate such road. and on return Of their Ger
tifcate they shall declare the same to be a
public highway.
Under the foregoing provisions Of law
and other authorities on this subject. IL seems
that the following precedent steps must be
taken in order to the e tnblishing Of a new
road. and the same rules apply with equal
force to the alteration of an old one. except
in some cases Of which this is not one
First. A petition mrss presented at reg
ular meeting. TO the Board Of Supervisors of
the ce,inty In which the road is to be loca
ted. Second, Said Board must cause notice
then 10 be given to all parties over whose land
improved OF unimproved, said road is to be
located. tof the character of this notice will
speak at the proper p"int.) Third. II any
one who owns land over which said road
would run. ohjects, the same il to be cousid
cred and determined by the Board at their
next regolas meeting after the same has
been made then if they consider the obiec
lion good. the vi ole matter drops there
hut II they be of opinion that the ohjecti
is rot insuperable, aud that the demand by
he public for such read. il so urgent that
the county would be justified in paying
damage, If any should be awarded by du,
process Of law, for running such rad, over
such ohjecting party's land, they shall ap
point viewers whose duty it shall be to view
out and locate the same aud on their re.
port the Board are to declare the same n
public highway, But l am Of opinion that
even after oil Il foregoing primary steps
have been taken, the Board Of Supervisors
csnno, enforce the oreping Of such road, nor
can any one prohibit the obstruction Of such
road unless the proper steps have frst been
taken, TO ascertain whether any damage
viii result to the party or parties ohjec,ing
'herr'o, the amount. il any, Hscer'ained. aud
payment thereof made, or satisfac ory ar
rangements entered into with the owner.
by which he absolutely and unconditioually
submits to the opening Of, aud keeping open
such road
The Law guards with Jealousy all private
rights Of The citizen aud p rticulariy his
vested rights TO the soil; aud will not com.
pc, him TO part with ,hose rights even for
public ose. without just compensation no,
the promise or hope thereof Aud all these
rrei equisites OF the law. must be rigidly
complied with, before a public road can BE-