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edged, and recorded in the clerk's office of each county where the surrendered road lies; thereafter the surrendered road belongs to the road districts in which it lies, but the company may continue to take toll on any three consecutive miles in length not so surrendered. En. March 12, 1872.

Section Cited.

Kellett v. Clayton, 99 Cal. 215, 33 Pac. 885; People v. Auburn etc. Turnpike Co., 122 Cal. 338, 55 Pac. 10.

Annotation.

Right of Company in Road.-A toll road company has only an casement in the road. In Wood v. Truckee Turnpike Co., 24 Cal. 475, it was said: "The road of the turnpike company is not the private property of the company, but belongs to the public, and all the interest the company has in it is the right and power to collect tolls on the line of the road as a compensation for building it. Every traveler has the right to use the road of a turnpike company, upon paying tolls established by law, that he has to use any other highway." (Kellett v. Clayton, 99 Cal. 212, 33 Pac. 885. To same effect: People v. Davidson, 79 Cal. 166, 21 Pac. 538; Blood v. Woods, 95 Cal. 78, 30 Pac. 129; Blood v. McCarthy, 112 Cal. 564, 44 Pac. 1025.)

COUNTY MAY PURCHASE ROAD, HOW.

Sec. 2800, Pol. C. At any time within five years from filing the certificate of completion of any road constructed under the provisions of this chapter, or at any time after any toll road constructed and under operation under any of the laws of this state has been in existence for ten or more years, a county within which the road or any portion thereof is located, may purchase the same at a fair cash valuation to be fixed by seven commissioners, all disinterested persons; three to be appointed by the board of supervisors of the county, three by the owner of the road, and one by the judge of the superior court of the county, who must estimate the fair cash value of the road, and make report thereof, under oath, to the board of supervisors. If, within three months after filing the report, the appraised value thereof is tendered on behalf of the county to the owner of the road, or his authorized managing agent, in gold coin, the right of the owner to take tolls on the road is terminated, and the road becomes the property of the county. En. March 12, 1872. Amd. 1880, 22; 1895, 796.

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Legislative History.

The original had "county judge' instead of "judge of the su perior court," and did not contain the provision for tolls roads which had been in existence ten years. The amendment of 1880 changed county judge to judge of the "superior court," and the amendment of 1895 added the provision as to roads in existence ten years. This section is based on section 7 of the toll road act of 1870, page 886.

Section Cited.

Welsh v. Plumas Co., 80 Cal. 341, 22 Pac. 254; Kellett v. Clayton, 99 Cal. 213, 33 Pac. 885; People v. Auburn etc. Turnpike Co., 122 Cal. 338, 55 Pac. 10.

Annotation.

Termination of Franchise.-The right of way of such a corporation may be terminated by forfeiture for abuse of franchise in collecting illegal tolls (sec. 2799, C. C.), or by condemnation by the county (sec. 2643, Pol. C.), or by purchase by the county under this section, or by expiration or nonuser of the franchise (sec. 2619, Pol. C.). Upon such termination of the right of way the board of supervisors would be required by proper ordinance to either cause the road to be recorded as a free public highway, or if not necessary for the use of the public, to abolish or discontinue it. (Welsh v. Plumas County, 80 Cal. 338, 22 Pac. 254.)

APPRAISEMENT AND AWARD, HOW MADE.

Sec. 2801, Pol. C. A majority of the board of commissioners mentioned in the preceding section constitute a quorum, and the concurrence of a majority in making the estimate and award is binding upon the road owner, if approved by the board of supervisors. The commissioners must make their report within thirty days after their appointment, and if approved, the tender of the amount of the appraisement and award must be made by the county treasurer; whether the owner conveys the road to the county or not, the report and tender operate as a conveyance to the county of the road and all its incidents and appurtenances. En. March 12, 1872.

Legislative History.

This section is based on section 1 of the ferry and toll bridge act of 1870, page 888.

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ARTICLE II.

USE OF TOLL ROADS, AND OBSTRUCTIONS THEREON.

§ 2814. Persons exempt from tolls.

§ 2815. Encroachments, how removed.

§ 2816. Who liable for penalty, and what.

§ 2817. Action for penalty or trespass.

PERSONS EXEMPT FROM TOLLS.

Sec. 2814, Pol. C. The following persons, and none other, are exempt from payment of toll on wagon, turnpike, or plank roads:

1. Persons going to or from any funeral, and all funeral processions;

2. Troops in actual service of the state or of the United States, and persons going to or from a military training which by law they are required to attend;

3. Persons going to or from the courthouse in obedience to a subpoena in a criminal action.

4. Persons living within one mile of any gate by the most usually traveled road may pass it at one-half toll, when not engaged in the transportation of others or the property of others.

5. Farmers living on their farms within one mile of any gate by the most usually traveled road, may pass free when going to or from their work on such farms.

6. School children attending school within three miles of their parents' or boarding house.

7. The road overseer of the road district through which road passes, or the commissioners of highways for the purpose of inspecting the condition of the road. En. March 12, 1872. Amd. 1880, 4.

Person not exempt evading payment of tolls, fine against: Pen. C., sec. 389.

Legislative History.

Subdivision 7 was added by the amendment of 1880.

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ENCROACHMENTS, HOW REMOVED.

Sec. 2815, Pol. C. On application by an officer of the company, the commissioner of highways, or road overseer of the district where the same exists, may inquire into any encroachment upon the lands of the company used for the purposes of the road, caused by fence, building, or otherwise, and he must, if he finds it does exist, require or cause its removal as provided for highway encroachments in article VIII, chapter II, of this title. En. March 12, 1872.

Section Cited.

Kellett v. Clayton, 99 Cal. 213, 33 Pac. 885.

WHO LIABLE FOR PENALTY, AND WHAT.

Sec. 2816, Pol, C. Every person who, having the control thereof, neglects to remove an encroachment after being notified thereof, or permits the same to remain after notice, unless he immediately commences and diligently prosecutes its removal to completion, is liable to a penalty of five dollars for every day of such neglect or failure. En. March 12, 1872.

ACTION FOR PENALTY OR TRESPASS.

Sec. 2817, Pol. C. An action for the penalties given by this chapter, and for any trespass on or injury to such road, may be maintained in the county where the act was done, or in that where the defendant resides, by the company. En. March 12, 1872.

ARTICLE III.

INSPECTION AND REPAIRS.

§ 2827. Inspection of roads, and repairs.

§ 2828.

Closing gates, and penalty.

§ 2829.

Defects in road to be reported to whom.

§ 2830.

Enforcing obedience to notice and requirement.

§ 2831. Fees of commissioner or overseer.

§ 2832.

Pack-trails in mountain districts.

INSPECTION OF ROADS, AND REPAIRS.

Sec. 2827, Pol. C. Every commissioner of highways or road overseer of the district to whom complaint in writing is made, that any part of a wagon, turnpike, or plank toll road in his county or district, or any part of such road, the gate nearest to which is in his county or district, is out of repair, must examine it without delay, and give notice of the defect, particularly describing the same, to the person attending the gate nearest thereto; if the necessary repair is not made or defect remedied within three days after such notice is given, the commissioner or road overseer may order such gate to be thrown open. En. March 12, 1872.

Section Cited.

Kellett v. Clayton, 99 Cal. 213, 33 Pac. 885.

CLOSING GATES, AND PENALTY.

Sec. 2828, Pol. C. A gate so ordered to be thrown open must not be shut nor any toll collected thereat until the commissioner of highways or road overseer ordering it shut grants a certificate that the road is in sufficient repair, and that the gate ought to be closed. The company and their gatekeeper, or other employee, violating or permitting the violation of this section, or the order made under the preceding section, are each liable in a penalty of twenty-five dollars for each offense, to be recovered by the party aggrieved. En. March 12, 1872.

DEFECTS IN ROAD TO BE REPORTED TO WHOM.

Sec. 2829, Pol. C. Every commissioner of highways or road. overseer who discovers a defect in any toll road in his county or district, or a gate placed in a situation contrary to law, must give written notice thereof to one or more of the directors or managing agents of the company, requiring the defective road. to be repaired, or the gate to be removed, within a specified time; and may order that in the meantime such gates as he specifies be thrown open. En. March 12, 1872.

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