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

10 the case Of the People ps Thomas J.
Wright. for obstructing a road, Is interest
ing. and should be read by every tax payer.
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 on appeal
from Justices Court Of this County, on n
statement Of the evidence settled by 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 and FIVE dollars q
day for thirteen days while said Highway in
question remained ob-tructed after notice
was served on defendant. md for costs Of
this ruif. now here asks this Court to reverse
tie judgement Of the Court below, on the
statement OF evidence herein filed, taken in
the Court below. and to enter n judgement
in favor Of defendant, that he 90 hence with
out day with proper costs Of this action.
This is proper motion in this case because
First. This Court has jurisdictiction Il that
character Of cares among which this case is
clnssed, to try "de novo." Second. 1t would
have been legitimate and within the rule Of
prnc'ice, for the defendant to have moved
the Court below TO have orened up md set
aside its judgement, on the evidence. If he
believed that the judgement was not justi.
he'd by the facts or evidence 10 the case and
to enter judgement for him, and
Third, An appeal. in criminal case.
may be taken from a Justices TO this Court,
on statement Of evidence alone, or on n
statement OF both evidence and errors Of law
occurring in the Court below and then and
there excepted to; and II he could do this in
the Court below, lie can most assurediy do
70 in this Court If he comes before it, on q
statement Of the evidence above.
The complaint or charge against defend
ants 10. that he obstructed n highway in
Butts county. To this charge. defendant
plead "not guilty !" but on the trial Of said
cause. admitted that he did put the oh-truc
ton complained of in the place alleged,
but denies that the same is public high
wav.
1t is not necessary therefore that I shou d
examined the evidence. in gross or in detail.
To find nut the mere fact--whether defend
ant did the act complained of; but merely
TO find out whether the act when done, con-
stituted public offence; and herein to find
out whether the road in question (Which it
is alleged was ohstructed by defendant) was
public highway, in the legal acceptation
that term, and ,uch an one as private rar-
ties might not obstruct. and road overseers
are bound to remove obstructiops from, or
have the snme done.
The statute. page 65l Woods Digest sec.
0. provides that when petition is presented
to the Board Of Supervisors praying for a
public road or cast road, TO be laid out 10
their county, notice thereof shall he given to
the parties owning the land over which said
read is to run.
! must stop short on the law ut this point,
and consider the interest Of the law makers
and Of this law, which 70 provides. And
reason answers at once, il IL, that, il any
one ownino land over which such intended
road would run, would thereby he Injured,
that fact may he made known TO the said
Board, in order that they may determine nc-
cordi 4 10 law. whether the wants Of the
public. which prompted the demand for
'uch road, are ofsuch import, as TO justify
the Payment Of just compensation for the
private prol erty thus to 10 taken for public
use.
The same law then goes on to say that IL
objections are made. by one or more parties
("wners) the came shall be determined by
them ut their next regular meeting ; and il
they he Of opin, that such road is nessnry.
they shall appoint viewers to view out aud
locate such road. and on return Of their Ger
tihcate they shall declare the same to be
public highway.
Under the foregoing provisions Of law
and ether authorities on this subject. II seems
that the following precedent s,eps must be
taken in order to the e tsblishipg of a new
road. and the came rules apply with equal
force 10 the alteration OF an oil one, except
In some cases Of which this il not one
First, A petition mrst presented at a reg
ular meeting. 10 the Board of Supervisors Of
the county In which the road is TO be loca
ted. Second. Said Board must cause notice
then TO be given to all psrlies over whose land
improved or uninproved, said road 10 to be
located. (of the character Of this notice will
speak at the proper pnint.) Third, II any
one who owns land over which said road
would run. objects. the ssmc is TO be consid.
cred and determined by the Board at their
next regular meeting after the same has
been made; then II they consider the objec.
lion COED. the Whole matter drops there (;
but IL they be Of opinion that the Of jccti
is not insuperable. and that the demand by
the public for such read, is so urgent that
the county would he justified in paying
damage, if any should be awarded by due
prccets Of law, for running such rund. over
such otjscting party's land. they shall ap
point viewers whose duty il sball be to view
out and locate the same; and on their re.
port. the Board are TO declare the same n
public highway, But am Of opinion that
even after all tie foregoing primary steps
have been taken, the Board of Supervisors
cannot enforce the opening Of such road, nor
can airy one prohibit the obstruction Of such
road unless the proper steps have first been
taken, TO ascertain whether any damage
will result to the party or parties ohjec,ing
'herrio, the amount. il any. nscertained, and
payment thereof made, or saiisisc ory ar
rnngsments entered into with the owner,
by which he absolutely and Internationally
submits to the opening Of, and keeping open
such road
The Law guards with jealousy all private
rights Of the eitizen and particularly his
vested rights to the soil: aud will not com.
pei him TO Iart with ihose rights even for