Myers v. Daubenbiss

Citations

• 84 Cal. 1
• 23 P. 1027
• 1890 Cal. LEXIS 749

Syllabus

<p>Injunction — Prescriptive Title ■—Unlawful Opening of Road—Parties— Joinder of Road Overseer and Supervisors— Joint Tres'pass. — A complaint showing a prescriptive title in the plaintiff to a tract of land hy adverse possession under a judgment of partition, and alleging that there has never been any road or highway over or across the premises, and that one of the defendants, who is the road overseer of the district, and who is insolvent, instigated and abetted by the other defendants, who are the supervisors of the county, had trespassed upon the premises hy tearing down the inclosure of plaintiff, digging up the soil, etc., for the purpose of constructing a road across the land, and would continue such acts to the irreparable injury of plaintiff, unless restrained by the court, states a cause of action for an injunction against the defendants, and is not liable to a demurrer for misjoinder of parties. The supervisors, appearing, under the averments of the complaint, to he joint trespassers with the road overseer, were properly joined with him as defendants.</p> <p>Id. —Judgment of Partition — Establishment of Public Road — Jurisdiction of Superior Court — Cessation of Highway by Non-user. — A judgment of partition rendered in 1873, purporting to establish a public road or highway across the partitioned premises, cannot justify the supervisors and road overseer in proceeding in their official capacity to open and construct the road fourteen years afterward, if it has never been before opened, and the plaintiff has all the time since the partition judgment occupied and held the premises adversely under inclosure and paid the taxes thereon; and it is immaterial whether the right of plaintiff rests upon the want of jurisdiction in the superior court to establish a</p> <p>road prior to the amendment of 1874 to section 764 of the Code of Civil Procedure, or upon the provisions of section 2620 of .the Political Code as that section stood when the judgment was entered