Opinion
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 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.
COUNSEL:
The 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.)
A. L. Hart, for Petitioner.
Stabler & Bayne, for Respondents.
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.)
JUDGES: In Bank. Myrick, J., concurred in the judgment.
OPINION
THE COURT The 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 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.