Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-09-07

road, and that it is the duty of said
Board, which the law specially enjoins
upon it. resulting from their Office rs
County Commissioners of said County
of Douglas, State of Nevada, to
vacate said Old Desert Road
and to declare it vacent,
officially, by their order duly entered
on their minutes, which duty they re-
fused and still refuse to perform, and
that your Relator is without and plain.
speedy or adequate remedy in the or
binary course of law
Respondent moves to quash and de-
murs to the petition on several
grounds. Among these the techinal
objection that there is no allegation
showing that the persons who petit
toned hte Board Of County Commits
sioners to vacate the road constituted
a majority of the resident taxpayers
in the District according to the last
assessment roll is we'll taken and
sufficient to invalidate the petition in
it's present form. Looking to the ques-
ton raised involving the merits of the
controversy it is more important to
determine whether the Board has any
discretion when the majority of the
taxpayers, II numbering only one or
more N a Road District petition to
have a public highway closed. The
opposing interests here are on one
side the benefits which two land own
ers would reap from the closing OF the
road which runs through and for
long time has traversed their fields,
and on the other the inconvenience
which would result to the travelling
public by closing the highway, and
as the petition indicates requiring It
least some people to journey three
miles further, thereby depriving them
of the hitherto vested right of using
the shorter thorougfare Can the Leg
islature or the law leave the adjust
ment of these conflicting interests to
one of the parties concerned who is
seeking a benefit, and deprive the
other of having the controversy sub
mitted to the discretion of the Board
of County Commissioners, the tribunal
usually authorized to regulate roads
in this State?
Section 479 of the Com. Laws Of
Nevada as amended in 1895 provides:
AT any time when a majority of the
| resident taxpayers of q road district,
| according to the last previous assess
| ment roll, shall petition the County
Commissioners of their counties, for
the location, opening for public use.
establishment, change or vacation Of
any public road or highway or road
to connect with any highway here.
tofore established, any street or ally
in any unincorporated town in such
county, setting forth in such petition
the beginning, course and termination
Of such road, or highway. street OF
ally proposed to be located and open
ed for public use, established, changed
or vacated, together with the name q
the owner or owners of the land
through which the same will pass, said
petition may be presented to the
County Clerk Of said county, and the
Clerk shall lay said petition before the
Board Of County Commissioners, Al
their next meeting after the reception
Of said petition, and thereupon sait
Board Of Commissioners shall, within
thirty days thereafter. proceed to 10
cate, open to public use. establish
change or vacate such road, high . ay
street or alley
RelatOr contends that the wore
shall" used in this statute Is man
datory. that on the presentation o
the petition signed by him and by TIL
H. F. Dangberg Land and Live Stool
Company constituting a majority an
tie only taxpayers in the road distric
the Board lost all discretion in tn
matter and all power to act juriciall
and that it became their bounde
duty to enter an order closing tn
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