Majority
p. 236[No. 11481. In Bank. October 29, 1886.] W. ASHE, Petitioner, v. BOARD OF SUPERVISORS OF COLUSA COUNTY, Respondents.
Headnote
Writ of Review—Affidavit of Person Applying for must Show Beneficial Interest. —A writ of review cannot be issued to annul an order of a board of supervisors granting the right to use a public highway for the purposes of a steam railroad, when the affidavit of the person applying for the writ fails to show that he has any beneficial interest in the matter distinguishable from that of the mass of the community.The proceeding was brought for a writ of review to annul an order of the board of supervisors of Colusa County granting to certain persons the right to use a public highway for the purposes of a steam railroad. The petition for the writ alleged in effect that the petitioner was a citizen and tax-payer residing in the county on the line of the highway, and that he, in common with the citizens generally who live along the highway, would be damaged by reason of the maintenance of the
p. 237The board of supervisors had no power to donate the public highway for the use of a railroad. (Pol. Code, secs. 2631, 2643; El Dorado Co. v. Davison, 30 Cal. 520 ; Williams v. N. Y. C. R. R. Co., 16 N. Y. 97 ; S. C., 69 Am. Dec. 651 ; Thompson on Highways, 21; Jackson v. Hathaway, 15 Johns. 447 ; Coburn v. Ames, 52 Cal. 385 ; Ventura Co. v. Thompson, 51 Cal. 577 ; Murphy v. De Groot, 44 Cal. 51 ; Damrell v. B. S. S. J. Co., 40 Cal. 154 ; Sherman v. Buick, 32 Cal. 241 ; S. C., 91 Am. Dec. 577 .) The writ should be quashed, as the petitioner has not shown himself to be a party beneficially interested. (Code Civ. Proc., sec. 1069; Linden v. Alameda Co., 45 Cal. 7 ; Davis v. Mayor etc. of N. Y., 14 N. Y. 506 ; S. C., 67 Am. Dec. 186 ; Marini v. Graham, 67 Cal. 130 ; Market St. R. Co. v. C. R. R. Co., 51 Cal. 583 ; Bigley v. Nunan, 53 Cal. 403 ; Crowley v. Davis, 63 Cal. 460 ; Doolittle v. Supervisors, 16 How. Pr. 512 .)
railroad. The court issued the writ, whereupon the respondent made a motion to quash it, on the ground that the affidavit for the writ was not made by a party beneficially interested. The further facts are stated in the opinion of the court.
A. L. Hart, for Petitioner.
Stabler & Bayne, for Respondents.
motion to quash the writ of review heretofore issued in this proceeding must be granted. It does not appear that the application for the writ was made on the affidavit of the party beneficially interested. The Code requires that “the application must be made on affidavit by the person beneficially interested. (Code Civ. Proc., sec. 1069.)
It does not appear by the petition in this case that the petitioner has any other or greater right in the public highway mentioned therein than any other citizen
p. 238
of the state. The requirement that the application must be made by “the party beneficially interested” has been construed to mean “that in an application made by a private party, his interest must be of a nature which is distinguishable from that of the mass of the community. (Linden v. Alameda Co., 45 Cal. 7 .)
Writ quashed and proceeding dismissed.
Myrick, J., concurred in the judgment.
Cases cited
- El Dorado County v. Davison 30 Cal. 520 p. 237
- Williams v. New-York Central Railroad 16 N. Y. 97 p. 237
- Jackson ex dem. Yates v. Hathaway 15 Johns. 447 p. 237
- Coburn v. Ames 52 Cal. 385 p. 237
- County of Ventura v. Thompson 51 Cal. 577 p. 237
- Murphy v. De Groot 44 Cal. 51 p. 237
- Damrell v. Board of Supervisors 40 Cal. 154 p. 237
- Sherman v. Buick 32 Cal. 241 p. 237
- Davis v. Mayor 14 N. Y. 506 p. 237
- Marini v. Graham 67 Cal. 130 p. 237
- Market Street Railway Co. v. Central Railway Co. 51 Cal. 583 p. 237
- Bigley v. Nunan 53 Cal. 403 p. 237
- Crowley v. Davis 63 Cal. 460 p. 237
- Doolittle v. Board of Supervisors 16 How. Pr. 512 p. 237