Of the two main contentions of appellants, the first is that the board of supervisors should have segregated and set apart to each of the two estates in question the amount to which said estate was entitled, and that "in the absence of such ascertainment, assessment, award and tender, such board was absolutely without jurisdiction to make an order establishing the road or enter the order directing this suit to be brought . . . and there being no valid order establishing the road or directing this action to be brought, no right of action arose in favor of the county, against the estate of Daniel Glann, the estate of Vincent Glann or the successors in interest of either of them." In support of the position are cited County of Sonoma v. Crozier, 118 Cal. 680, [50 P. 845], County of Sutter v. McGriff, 130 Cal. 127, [ 62 P. 412], and Graham v. Bailard, 157 Cal. 96, [ 106 P. 215]. In the first of these was involved a question of pleading, and it was held that "a complaint in an action by a county to condemn the land of the defendant for a private way, which merely avers the filing of a sufficient petition and the giving and approval of the bond, and that afterward such proceedings were had that on a day specified, the board of supervisors of the county, by order duly given and made, directed the district attorney to institute condemnation proceedings, but which fails to state that viewers were appointed, or that they proceeded to lay out the road, or that they made or filed any report, or that the report was approved, or that damages awarded had been tendered to defendant and refused by him, fails to state a cause of action."
[5] The owner of property proposed to be taken is entitled to have the proceedings leading to that end carried out in all material respects. ( Graham v. Ballard, 157 Cal. 96 [ 106 P. 215]); and it has been held that every requirement of the statute giving the least semblance of benefit to the owner must be complied with ( Shipman v. Forbes, 97 Cal. 572 [32 P. 599]). [6] It is our conclusion from the language of the above sections that the issuance of execution under section 1252 is not a condition to the right to proceed under section 1255a; and that in enacting the latter section it was the legislative intention to require dismissal when the award has not been paid as provided by section 1251 unless the case be within one of the exceptions mentioned above.
Upon the alternative issue of abandonment the only proof is that the highway department had not actually used the entire right of way, which has been encroached upon by the appellee's fences and improvements. It is quite generally held that the public's failure to occupy is entire easement does not constitute an abandonment of the unused portion. Graham v. Ballard, 157 Cal. 96, 106 P. 215; Wolfe v. Sullivan, 133 Ind. 331, 32 N.E. 1017; Olwell v. Travis, 140 Wis. 547, 123 N.W. 111. And of course the appellee's encroachments are without significance, the public highways not being subject to adverse possession. Ark. Stats., 37-109.
Its contention is that the 1856 minute order, called an ordinance by County, provided notice to all inhabitants of County that all future roads would be 80 feet wide unless otherwise stated. County analogizes to Graham v. Bailard (1909) 157 Cal. 96 [160 P. 215], in which the court held an order of a board of supervisors setting forth the line of a road but not its width "is permissive in highway proceedings where a minimum width is prescribed by statute. Where a road is so described, it will be deemed to be a road of the minimum width prescribed by statute in the absence of anything showing to the contrary.