Welsh v. County of Plumas

Citations

• 80 Cal. 338
• 22 P. 254
• 1889 Cal. LEXIS 915

Syllabus

<p>Quieting Title—Toil-road — Adverse Claim of County—Nature of Right of Way. —Grantees of a toll-road constructed pursuant to an act of the- legislature have- a sufficient estate or interest in the land upon which the wagon-road rests to enable them to sue the county, under section 758 of the Code of Civil Procedure, to determine an adverse claim by it to the ownership of the road as a free public highway. The right of way for the road is private property, though held for a public use, and is incident and necessary to the privilege of collecting tolls thereon, and constitutes an interest in the land on. which the wagon-road rests.</p> <p>In.—Pleading—Defense: by County—Demurrer.,—If plaintiff’s toll franchise has expired, or has been determined: by-forfeiture, condemnation, or purchase by the county, or otherwise, sothat.it may declare the road a free public highway, it should set up such fact in its answer to plaintiff’s complaint for adjudication; hut the county cannot by general . demurrer assail the right of the plaintiff to have the adverse claim of the county determined, in an action to-quiet plaintiff’s title under section 738 of the Code of Civil Procedure.</p> <p>Jd, —Injunction—Interference, of County with Tolls—Pleading.—The owner of an incorporeal hereditament, though he may have no estate in the land, shows a sufficient case in equity to sustain, an injunction, if his complaint avers possession and a right to the possession of a toll-road for the purpose of collecting tolls thereon, and that the county through its hoard of supervisors interferes with and obstructs the free use and enjoyment of his property by depriving him of his tolls.</p>