From Casetext: Smarter Legal Research

Peck v. Board of Supervisors

Supreme Court of California
Jul 31, 1891
90 Cal. 384 (Cal. 1891)

Opinion

         Department One

         Application to the Supreme Court for a writ of mandate.

         COUNSEL

          John Mansfield, and Edgerton Blades, for Appellant.

          Frank P. Kelly, O'Melveny & Henning, and James McLachlan, for Respondent.


         JUDGES: Belcher, C. Vanclief, C., and Fitzgerald, C., concurred.

         OPINION

          BELCHER, Judge

         This is an application for a writ of mandate to compel the board of supervisors of Los Angeles County "to clear of obstructions, repair, open, put in condition, and keep in condition for public travel," a portion of a road situate in that county.

         A demurrer to the verified petition was interposed and sustained by the court below. The applicants declined to amend, and thereupon judgment was entered dismissing the proceeding. The appeal is from that judgment.

The demurrer was upon several grounds, and, in our opinion, was properly sustained, for the following reasons:

         1. Boards of supervisors have general supervision over the roads within their respective counties. They must lay out and establish such highways as are necessary for public convenience, and may abolish or abandon such as are not necessary. (Pol. Code, sec. 2643; County Government Act, sec. 25, subd. 4.) It is not stated in the petition, and it in no way appears therefrom, that the obstructed road had not been abandoned and discontinued by the respondent board.

         2. It is made the duty of road overseers, under the direction and supervision of the road commissioners, and pursuant to orders of the board of supervisors, to take charge of the highways within their respective districts, and to keep them clear from obstructions and in good repair. (Pol. Code, secs. 2645, 2731 et seq.) It is stated in the petition, that the road complained of is within a certain named road district, but it is not stated that the attention of the road commissioner or road overseer had ever been called to the alleged obstruction, or that either of them had ever been asked to have the obstruction removed.          Writs of mandate are issued only to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. (Code Civ. Proc., sec. 1035.) The duty here was upon the road overseer, and he should at least have been made a party to the proceeding.

         We advise that the judgment be affirmed.

         The Court. -- For the reasons given in the foregoing opinion, the judgment is affirmed.


Summaries of

Peck v. Board of Supervisors

Supreme Court of California
Jul 31, 1891
90 Cal. 384 (Cal. 1891)
Case details for

Peck v. Board of Supervisors

Case Details

Full title:GEORGE H. PECK et al., Appellants, v. THE BOARD OF SUPERVISORS OF LOS…

Court:Supreme Court of California

Date published: Jul 31, 1891

Citations

90 Cal. 384 (Cal. 1891)
27 P. 301

Citing Cases

Wenzler v. Municipal Court

Where it appears that the officer named as respondent is not the one whose duty is involved, relief is…

Spaulding v. Desmond

The plaintiff is not, as contended by defendants, attempting in this application to try the title to his…