Opinion
Department Two
APPEAL from a judgment of the Superior Court of Tuolumne County and from an order denying a new trial. G. W. Nicol, Judge.
COUNSEL:
J. T. Rooney, for Appellant.
Henry E. Carter, for Respondent.
JUDGES: Temple, J. McFarland, J., and Henshaw, J., concurred.
OPINION
TEMPLE, Judge
This action was brought to recover the sum of five dollars, the season's tolls alleged to be due from the defendant for traveling over the Sonora and Mono toll road.
In 1860 a toll road was constructed from Sonora, in Tuolumne county, to Bridgport, in Mono county, under franchises granted by the counties of Tuolumne, San Joaquin, and Stanislaus.
Prior to May, 1883, the franchises had expired, and the road under the law became a public highway. The portion in question here is fifty-eight miles in length, and extends over a rough, mountainous country.
On the seventh day of May, 1883, the board of supervisors "upon proper petition filed" vacated and discontinued the road as a public highway, and on the same day granted to J. B. Carter, "his associates and assigns," a franchise to construct and maintain a toll road for a period of fifteen years, "over that portion of the Sonora and Mono wagon road hereinafter described."
Carter took possession of the road and collected the tolls according to rates fixed by the board until January, 1893, when by deed he conveyed the franchise and road to plaintiff; soon after which he died. Since that time plaintiff has been in possession and has collected tolls. In August, 1896, the board of supervisors required her, as owner of the franchise, to give the bond provided for in the original grant of a franchise to J. B. Carter. In compliance with such order plaintiff gave the bond, which was approved and filed.
1. It is contended that the grant of franchise to J. B. Carter is void, because it was a grant of a public highway to a private individual. [55 P. 139] In Blood v. Wood , 95 Cal. 86, it was held that the board could not authorize an individual to collect tolls on a public highway. It is argued that the mode pursued here was a mere evasion.
But by vacating the public highway the board destroyed the road as a public highway. If it passed over private land the rights of way were lost, and the roadbed, the bridges and other structures, if any, became the property of the land owners. The right to these did not pass to J. B. Carter by the grant of the franchise.
Carter was authorized to construct and maintain a toll road. Since he was for years in possession, collecting tolls according to established rates, we must presume he did so. If he did not a forfeiture could not be declared in this suit.
2. It is contended that the franchise could not be assigned without the consent of the granting power, as it is a personal trust. (Wood v. Truckee , 24 Cal. 474; People v. Duncan , 41 Cal. 511; Visalia v. Sims , 104 Cal. 328.)
We find, however, that after the assignment the board of supervisors recognized the assignment and required Mrs. Carter to give a bond as owner of the franchise. The board also approved and filed the bond.
This was a ratification and approval of the transfer.
The judgment and order are affirmed.