Opinion
Appeal from the District Court, Twentieth Judicial District, County of San Benito.
The plaintiff recovered judgment abating the nuisance and the defendant appealed.
COUNSEL:
Murphy, Shackelford & McPheters, for the Appellant.
N. C. Briggs, for the Respondent.
JUDGES: Wallace, C. J., not having heard the argument, did not participate in the decision.
OPINION
By the Court:
The action is by the county to abate a nuisance caused by the obstruction of a public highway, and was commenced in March, 1875. We have been referred to no provision of the statute, nor to any rule of law, which authorizes an action of this character in the name of or on behalf of a county. On the contrary, it would appear from section 2746 of the Political Code as amended in 1873-4, that the action must be in the name of the road overseer: we think the action in the name of the county cannot be supported.
Judgment reversed and cause remanded, with an order to the court below to dismiss the action.