ARTICLE VI. Laying Out, Altering, and Discontinuing Roads. § 2681. Who may apply to alter, discontinue, or lay out. § 2682. Petition. Road-viewers. § 2683. § 2684. § 2685. Duties of road-viewers. § 2689. Proceedings on approval of report. 2690. § 2691. $2692. Opening of private ways. § 2693. § 2694. Viewers and surveyors, how paid. Proceedings of board in hearing report. Damages. Rejection of damages. Proceedings to procure right of way. Bond. Record of transfer of right of way. Roads crossing railroads, street railroads, canals, and ditches. Legislation Article VI. 1. Enacted March 12, 1872, the title of the article being the same as at present, and embracing the subject-matter of the present article. In 70 Cal. 435, §§ 2698-2708 of the article were cited. The section numbers and titles (with amendments and repeals before 1883) were as follows: § 2698. Who may apply for change (amended (1) by Code Amdts. 1873-74, p. 123; (2) by Code Amdts. 1880, p. 72); preserved, with additions, post, § 2681. § 2699. What the petition must show (preserved post, § 2682). § 2700. Petitioners to give bonds for costs (preserved post, § 2683). § 2701. Supervisors to order change, and to appoint viewers (preserved post, § 2684). § 2702. Viewers to be appointed, and their duties (preserved post, § 2685). § 2703. Report of viewers (amended by Code Amdts. 1880, p. 72); pre-served post, § 2686. § 2704. Report not to be approved, when (amended by Code Amdts. 1873–74, p. 124; repealed by Code Amdts. 1880, p. 76). § 2705. Viewers and surveyors, how paid, and on what certificate (preserved post, § 2687). § 2706. Proceedings of board in hearing report (amended (1) by Code Amdts. 1873-74, p. 124; (2) by Code Amdts. 1880, p. 72); preserved post, § 2688. § 2707. Effect of, and proceedings on approval of viewers' report (amended (1) by Code Amdts. 1873-74, p. 124; (2) by Code Amdts. 1880, p. 72); preserved post, § 2689. $2708. Proceedings to procure right of way (amended (1) by Code Amdts. 1873-74, p. 124; (2) by Code Amdts. 1880, p. 72); preserved post, § 2690. §2709. Awards, how and by whom paid (preserved post, § 2691). § 2710. Width of highways (amended by Code Amdts. 1880, p. 73); preserved ante, § 2620, and see post, § 2681. § 2711. Private roads, how opened (amended by Code Amdts. 1880, p. 73); preserved post, § 2692. § 2712. Conveyances or decrees of condemnation of lands to be recorded (identical with § 2693, post). $2713. Roads crossing railroads, canals, or ditches (identical with § 2694, post). § 2714. Fence to be removed, how (amended (1) by Code Amdts. 1873-74, p. 126; (2) by Code Amdts. 1880, p. 74); preserved post, § 2695. 2. Original code Article VI repealed by Stats. 1883, p. 5, in repealing the old and substituting a new Chapter II, and a new Article VI enacted. See ante, Legislation Chapter II, and compare, generally, titles "Legislation" of the various subdivisions of the chapter. § 2681. Who may apply to alter, discontinue, or lay out. Any ten freeholders who will be accommodated by the proposed road, two of whom must be residents of the road district wherein any part of the proposed road is situated, and who are taxable therein for road purposes, may petition, in writing, the board of supervisors to alter or discontinue any road, or to lay out a new road therein; provided, that when a road is petitioned for upon the dividing line between two counties, the same course shall be pursued as in other cases; except that a copy of the petition shall be presented to the board of supervisors of each county, who shall appoint viewers, to act jointly, and report to their respective boards the action of such viewers; provided further, that all such roads shall be at least forty feet wide. [Amendment approved 1891; Stats.-1891, p. 64.] Legislation § 2681. 1. Enacted by Stats. 1883, p. 12; an amendment of original §§ 2698, 2710. 2. Amended by Stats. 1891, p. 64. See ante, Legislation Chapter II, and Legislation Article VI. § 2682. Petition. The petition must set forth the general route of the road to be abandoned, discontinued, altered, laid out, or constructed, and the names of the persons over whose land the same is to run, if known, and if not known, that fact must be stated. [Amendment approved 1891; Stats. 1891, p. 509.] Legislation § 2682. 1. Enacted by Stats. 1883, p. 12; an amendment of original code § 2699. 2. Amended by Stats. 1887, p. 169. 3. By Stats. 1891, p. 509. See ante, Legislation Chapter II, and Legislation Article VI. § 2683. Bond. The petitioners must accompany the petition with a good and sufficient bond, to be approved by the board of supervisors, in double the amount of the probable cost of the viewing and laying out or altering of any road, conditioned that the bondsmen will pay all the costs of viewing and surveying in case the prayer is not granted. Viewing and surveying: See post, § 2686. Legislation § 2683. Enacted by Stats. 1883, p. 13; an amendment of original code § 2700. See ante, Legislation Chapter II, and Legisla tion Article VI. § 2684. Road-viewers. Upon filing such petition and bond the board of supervisors may, if they deem it advisable, appoint three viewers, one of whom must be a surveyor, to view and survey any proposed alteration of an old, or opening of a new road, and submit to the board an estimate of the change, alteration, or opening, including the purchase of the right of way, and their views of the necessity thereof. [ [Amendment approved 1893; Stats. 1893, p. 100.] Legislation § 2684. 1. Enacted by Stats. 1883, p. 13; an amendment of original code § 2701. 2. Amended by Stats. 1891, p. 65. 3. By Stats. 1893, p. 100. See ante, Legislation Chapter II, and Legislation Article VI. § 2685. Duties of road-viewers. The road-viewers must be disinterested citizens of the county, but not petitioners. They must be sworn to discharge their duties faithfully, must view and lay out the proposed alterations or new road over the most practicable route, and in the performance of this duty they shall be required to make the proposed altera tions or new road over the same lands mentioned in the petition, but shall not be confined to any particular route indicated therein. The viewers must notify the resident owner or agent of the owner of the land over which it passes of the proposed route. A majority number of the viewers, providing one shall be a surveyor, shall be competent to act in all matters pertaining to their duties mentioned in this chapter. The board of supervisors, in making the order appointing viewers, may, in their discretion, direct said viewers to first view the proposed road, and if, in the opinion of the viewers, the road is impracticable, the said viewers shall discontinue further proceedings in the matter, and report accordingly. [Amendment approved 1887; Stats. 1887, p. 169.] Legislation § 2685. 1. Enacted by Stats. 1883, p. 13; an amendment of original code § 2702. 2. Amended by Stats. 1887, p. 169. See ante, Legislation Chapter II, and Legislation Article VI. § 2686. Report of road-viewers. When the view and survey of the proposed alteration or new road is completed, the viewers must report to the board of supervisors: 1. The course, termini, length, and probable cost of construction of the proposed road. 2. The estimate of damage to the owner of any land over which it is proposed to run the road. 3. The names of land-owners who consent to give the right of way, and their written consent thereto. 4. The names of land-owners who do not consent, and the amount of damage claimed by each; provided, that when there are non-resident land-owners, and no agent upon the land upon whom notice can be served, such non-resident land-owners shall be considered as non-consenting landowners unless their written consent shall have been obtained. 5. Such other facts bearing upon the subject of importance to be known by the board of supervisors. 6. They may also, in their discretion, or by order of the board of supervisors, report upon the feasibility and cost of any other route than the one petitioned for which would subserve the same purposes; and also report as to the necessity of a greater or the practicability of a less width of road than petitioned for. Legislation § 2686. Enacted by Stats. 1883, p. 13; an amendment of original § 2703. See ante, Legislation Chapter II, and Legislation Ar ticle VI. § 2687. Viewers and surveyors, how paid. The viewers must be paid. not to exceed three dollars each per day for their services out of the road fund of the district through which the road passes, and the surveyor shall receive a per diem not to exceed ten dollars for the time occupied in running out and mapping the road, and making the plat and field-notes, which must be filed before he receives his compensation. Legislation § 2687. Enacted by Stats. 1883, p. 14; an amendment of original code § 2705. See ante, Legislation Chapter II, and Legislation Article VI. § 2688. Proceedings of board in hearing report. The board of supervisors at the next meeting after the filing of the report, or at the time when the report is filed (if then in session), must fix a day for hearing the same; and must give notice to such non-consenting land-owners of the time and place of such hearing, by publication for at least two successive weeks before such hearing in a newspaper, to be designated by the board, published in the county; but if there be no newspaper published in the county, then by posting notices, one at a conspicuous place on the land, and one at the court-house, at least two weeks before such hearing. Said notice shall intelligibly describe the road to be abandoned, discontinued, altered, laid out, or constructed, and the lands over which the same is to run, and the names of the owners of such land when known, and if not known, that fact must be stated. The board must, on the day fixed for the hearing, or to which it may be postponed or continued, hear the evidence offered by parties interested for or against the proposed alterations or new road; and must ascertain and by order declare the amount of damage awarded to each non-consenting land-owner over whose land they shall order the road to be opened, whether known or unknown, and declare the report of the viewers to be approved or rejected, in whole or in part. [Amendment approved 1891; Stats. 1891, p. 509.] Consenting owners: See § 2686, supra. Legislation § 2688. 1. Enacted by Stats. 1883, p. 14; an amendment of original § 2706. 2. Amended by Stats. 1891, p. 509. See ante, Legislation Chapter II, and Legislation Article VI. § 2689. Proceedings on approval of report. Damages. If the board approve the report, and there are no non-consenting land-owners, the road must by order be declared a public highway, and the same opened to the public. The board, upon making each and every order establishing the location or alteration of any road or highway, shall order the amount of damages sustained by each and every person owning or claiming lands, or any improvements thereon or affected thereby, as finally fixed and assessed by them, to be set apart in the treasury out of the proper fund, to be paid to the proper owner or claimant if known, and to be kept for proper claimant or owner if unknown, and to be paid to him or her upon showing or establishing their right or title to such lands or improvements; provided, that any person interested in said road may place in the treasury the whole or any part of the amount necessary to meet the demands made upon such fund by said orders of the board. Any moneys so set apart as herein provided for, shall be returned to the person from whom or the fund from which it was taken or set apart, if not paid to or accepted by the proper owner or claimant. If the awards are all accepted, the road must be declared a public highway, and be opened as before provided. [Amendment approved 1887; Stats. 1887, p. 170.] Legislation § 2689. 1. Enacted by Stats. 1883, p. 14; an amendment of original § 2707. 2. Amended by Stats. 1887, p. 170. See ante, Legislation Chapter II, and Legislation Article VI. § 2690. Rejection of damages. Proceedings to procure right of way. If any award of damages is not accepted within ten days of the date of the award, it shall be deemed as rejected by the land-owners. The board must by order direct proceedings to procure the right of way to be instituted by the district attorney of the county, under and as provided in title seven, part three, of the Code of Civil Procedure, against all non-accepting land-owners, and when thereunder the right of way is procured the road must be declared a public highway, and opened as herein provided. In such suit no informality in the proceedings of the board shall vitiate said suit, but the said order of the board directing the district attorney to bring suit shall be conclusive proof of the regularity thereof; and the said suit shall be determined by the court or jury in accordance with the rights of the respective parties, as shown in court, independent of said proceedings before said board. [Amendment approved 1887; Stats. 1887, p. 170.] Notification of owners: See § 2688, supra. Eminent domain, generally: See Code Civ. Proc., §§ 1237 et seq. Legislation § 2690. 1. Enacted by Stats. 1883, p. 14; an amendment of original § 2708. 2. Amended by Stats. 1887, p. 170. See ante, Legislation Chapter II, and Legislation Article VI. § 2691. Payment of awards and expenses. All awards by agreement, ascertainment by the board or the proper court, and all expenses of viewing, laying out, or altering any road, must be paid out of the road fund of the district, except that which may be paid by interested parties on the order of the board of supervisors, and except also that whenever it appears to the board of supervisors that any road district would be unreasonably burdened by the payment of such awards and expenses, the board of supervisors, by a two-thirds vote, may cause a portion of such awards and expenses to be paid from the general road fund; provided, however, that not to exceed ten per cent of the general road fund shall be devoted to such purposes in any one fiscal year. If the road lies in more than one district, the supervisors must proportionately divide the awards and other costs between said districts; provided, however, that when money is paid out by any interested person the same may be given to the credit of either fund, at the discretion of the board. [Amendment approved 1893; Stats. 1893, p. 53.] Legislation § 2691. 1. Enacted by Stats. 1883, p. 15; an amendment of original code, § 2709. 2. Amended by Stats. 1887, p. 170. 3. By Stats. 1893, p. 53. See ante, Legislation Chapter II, and Legislation Article VI. § 2692. Opening of private ways. Bond. Private or by-roads or private ways for a canal may be opened, laid out, or altered for the convenience of one or more residents or freeholders of any road district in the same manner as public roads are opened, laid out, or altered, except that only one petitioner shall be necessary, who must be either a resi dent or freeholder in said road district; and the board of supervisors may for like cause order the same to be viewed, opened, laid out, or altered, the person for whose benefit said road or private way for a canal is required paying the damages awarded to land owners, and keeping the same in repair; provided, that the petitioners must accompany the petition with the bond mentioned in section 2683, conditioned as provided in said section, and with a further condition that the bondsmen will pay to the person over whose land said road or private way for a canal is sought to be opened, his necessary costs and disbursements in contesting the opening of such road or private way for a canal, in case the petition be not granted, and the road or private way for a canal finally not opened; provided, that all private roads or private ways for canals opened, or laid out, under the provisions of this act, shall be upon section or half sec |