The daily Butte record., 1858-08-06

real estate for him, generally. or in partic-
uiar. the land to be aversed by the inten
dsd road This service Of notice, to be val.
id and binling in law and in equity should
be made with as much sasredness of manner
as the service Of summons in any civil
action concerning real estate, and should be
made. indeed il must be made. BY a sworn
officer, or some one who would be n compe
tent witness in the case, and If the latter
manner. the return Of service shonlf be un.
der legal oath or affirmation Of the party
who made the service indeed am not GER
tain that it should not he, if even made by
Sheriff, Constable or any other sworn officer
This done, and services having been dnly
appointed. (and by the way, they shonid be
disnterested parties, aud free from any bias
or prejudices.) and having reported. the
Board may. under the law, declare such
road public high way As TO what must
then be done. before law will enforce the
keeping of il open. have already spoken
| II Is not point well taken that an old
road once ran through defeniant's lands,
and th9t rhe road alleged to have been Oh
structed was hut sE hit change from the
old route Admi ting that the old roal as
aledgef, was legally established road or
highway, which, bad il rem ined unchang-
ed. def ndant might have B. en- compelled TO
have kept open, still, any change of sad
road from portion Of Defendants lands (pri-
vnte property unless made in the manner
above indicated. uld not bind him, uMless
by consent, and that consent must have been
given IN n certain, sole mn and unequi vocal
form or answer II is not sufficient that a
party suhuits merely to road being run
over his land for n short period Of time he
NUT do some act which convinces he ration
( 81 Esl. l.
to yie Il bis private rights to the public,
and that too, with no other compensation
than his individual share Of the pubic con
venieDce. Without this, l ind no author
ity to justify legal proceedings against him,
tho he may have Ob-tvueted a road over his
private lands, nfter = lapse Of several years,
unless the location Of the road took place
when the land was a portion Of the pub ic
domain.
Nor is the point wen taken that the land
traversef by said road, was unimproved
land That fact does not argue that il was
aDy less valuable to defe endant, for the Ia "
does not presume in what manner man
may wish to or shall use his lands whe her
in culture or In wild state for common
pa tutaRe; nor does 1t presume. IL it DO un
limproved land. how long or how shoyta time
may OF should el,pse before tho owner may
wish to place it under enclosure for due
process Of cultivation.
The damage 10 be assessed and pnd to the
owner. If the land is uncullivated, might be
| less, but the owner of it is none the less en-
titled to receive it, be it what il may.
II the opposite were the 'nle OF law, then
and in that event, il the public should sue
ceed in running roads over majority 0t q
citizens uncultivated lands. he could never
enclose md till it pr ftably. and could re.
cover no damage for its appropriation to the
use of the public.
| will now pas 10 the consideration of the
facts in the present case
The record before me does not disclose
that any notice was ever given to the de-
defendant. that if he VIA. notified it was not
done III proper manner, or in such man
ner as to bind bim-that Thos Wright and
Esq Wright are the same party, and the
defendant herein-thst no steps were taken
to compensate him, defendant. for tn dam
age to the lands over which said road was TO
run, although ht had objected ta the same.
The paper or document sent up As evi
dence marked &C." is not legal evidence.
The concIusian of law tbere etore. is. that
the judgment of the Court below should be
set aside. and that plnintih AXE nothing by
this action, aud that the defendant go hence
without day. with his costs Of this action.
Lit judgement be entered accordingly.
TH0S WELLS,
County julie Butte Co