The daily Butte record., 1858-08-06

real estate for him, generally. or in partic- |
ular, the land to be traversed by the inten- |
ded road This service Of notice, TO be val.
id and binding in law and in equity should
be made with as much sacredness Of manne,
as the service OF q summons in any civil
action concer rning real estate. and should be
made, indeed it must be made. by sworn
officer. or some one who would be compe
tent witness in the Case, and il the latter
manner, the return Of service should be un-
der legal oath or affirmation of the party
who made the service indeed nm not GER
tain that it should not be, if even made by
Sheriff. Constable or any other sworn officer
This done, and services having been duly
appointed, (and by the way, they shonld be
disintersstei parties, and free from any bias
or prejudices,) aud having reported, the
Board may. under the law, declare such
road public high way As to what mu-t
then be done. before law will enforce the
keeping of it open. have already spoken
Ii is not point we'll taken that an old
road once ran through defendants lands,
and that the road alleged to have been ob
structed vas but n sli ht change from the
old route. Admi ting that the old road as
alledged, vas n legally established road or
highway. which, had it rem ined unchang-
ed. def ndant might have ben compelle ed TO
have kept open. still. any change Of said
road from portion of detandants lands (pri-
vnte property unless made in the manner
above indicated. could not bind him, unless
by consent, md that consent must have been
given in n certain. solemn and unequvocal
form or answer. II is not sufficient that
party submits merely to a roai being run
over his land for short period Of time; he
NUT do some net which conviuces he ration
al mind hat the owner Of the land intends
to yie his private rights to the public,
and that too. with no other compensation
than his individual share of the pub ic con-
venience. Without this, l find no author
ity to justify legal proceedings against him,
th0,.be may have ob-tructed roal over his
private lands, nfter a lapse of several years.
unless the location Of the road took place
when the land was a portion Of the pub ic
domain.
Nor i. the point we'll taken that the land
traverse1 by said road. was unimproved
land Thai fact does not argue that il was
any less valuable to defendant, for the law
does not presume in what manner a man
may wish TO or shall use his lands whet her
in culture or in n wild state for common
pm. turage nor does it presume. if it be un.
improved land. how long or how short time
may or should elapse before the owner may
wish 20 place it under enclosure for due
process Of cultivation.
The damage to be assessed and paid to the
owner. ifthe land is nncnliiva,ed, might be
less, but the owner of it is none the less en-
titled to receive it, be it what it may.
II the opposite were the rule of law, then
and in that event, if the public should sue
ceed in running roads over n majority of a
citizens uDcultivated lands. he could never
enclose and till it pr, 6taby. and could re.
cover no damage for its appropriation to the
use of tho public.
/ will now pas TO 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 IL he wa, notified it was not
done in a proper manner, or in such man
ner MS to bind him-that Thos Wright and
Esq. Wright are the same party, and the
defendant herein-that no steps were taken
to compensate him. defendant, for tn dam
age TO the lands over which said road was 10
run, although he Ind objected to the same.
The paper or document sent up n, evi
dence marked &C." is not legal evidence.
The conclusian Of law the, efore. is. that
the judgment Of the Court below should be
eet aside. and that plnintif take nothing by
this action, and that the defendant go hence
without day, with his costs Of this action.
Let judgement be entered accordingly.
THO5 WELLS,
County Ju lye Butte Co