Appeal from the District Court of the Fourteenth Judicial District, County of Sierra.

         The plaintiff filed his complaint in the Court below, in the nature of a declaration in trespass, vi et armis, and also asking the equitable interposition of the Court by injunction, to restrain further acts of waste and trespass, threatened by the defendants.

         The facts of the case are, that the board of supervisors of Sierra, had, by resolution extended a street, or thoroughfare, through the land of the plaintiff, without providing any compensation for the private injury consequent thereon, and were in the act of opening the street through the ground of the plaintiff at the time the complaint was filed. The complaint asks a perpetual injunction, and five hundred dollars damages.

         The bill was demurred to, and the demurrer sustained.

         Plaintiff appealed.

         COUNSEL:

         The Constitution of the State, in section eight of first article, provides that private property shall not be taken for public use without just compensation. The clause is not peculiar to our Constitution, but is found, it is believed, in the Constitution of every State in the Union.

         It is unnecessary to cite at length the various decisions which have been made at different periods in the several States upon this clause. It will suffice to state the result of the adjudications.

         It has been held that whenever private property is taken for public use, the compensation must be settled by stipulation between the Legislature and the proprietor, or by a commission mutually elected by the parties, or by the intervention of a jury. (Van Horne v. Dorrence, 2 Dall. 3, 13; Armstrong v. Jackson, 1 Blackf. 374.)

         It has also been held that whenever private property is taken for public use, the compensation to the proprietor must be either ascertained and paid to him, before his property is taken, or an adequate fund must be provided, out of which he may obtain compensation in the Courts of Justice, if the same be not otherwise made to him. (Bloodgood v. The Hudson & Mohawk R. R. Co., 18 Wendell, 17; Kent's Comm's, 2 vol. p. 339.)

         In Bonaparte v. Camden & Amboy Railroad Co., 1 Baldwin's C. C. U.S. Reps., it was held that a law taking private property for public use without providing for compensation, was not void, for thiscould be done by a subsequent law, but that the execution of the law would be enjoined until the provision be made, and the payment ought to be simultaneous with the actual appropriation of the property. (See Kent, vol. 2, note to page 340.)

         The third ground of demurrer, that there is no allegation " in said complaint that the demand, or claim, or relief, or the damages claimed or sought after in said complaint, has been presented to the board of supervisors of Sierra county for allowance, and that the board of supervisors of Sierra county have failed or refused to allow the same, or some part thereof," is not well taken.

         The relief which a party seeks by an injunction against an invasion of his private rights and a spoliation of his private property, can, in no just sense, be termed a demand or claim which he must present to the board of supervisors for allowance or rejection before he can institute his suit. By the claims and demands referred to in section twenty-four of the Act concerning supervisors (session laws of 1855, p. 56) are meant such as partake of the character of accounts or debts--obligations arising from contracts, express or implied, with the county.

         Theprovision of section twenty-four, that no person shall sue a county, in any case, or for any demand, means that no suit shall be maintained against a county, in any case, for a claim or demand, which arises from accounts which are to be passed upon, audited, and allowed by the board of supervisors. This is evident, from the reading of the whole section. It has not, and cannot, have any reference to suits to enjoin and prevent the carrying out of illegal orders of the board.

         The terms " claims or demands," do not properly apply to relief such as is sought by the plaintiff in the present case.

         The counsel of the respondent seems to regard the allegation of damages sustained to the amount of five hundred dollars, as the gist of the complaint, and their recovery as the object of the action. They are a mere incident to the action, and the allegation in relation to them in the complaint, and the prayer for judgment to that amount, may be treated as surplusage. The object of the action is to enjoin the defendant, and its officers, agents, and servants, from opening a public road through the private property of the plaintiff.