MCKEE, J.- This action was brought by plaintiff as owner in fee and in the actual possession of a tract of inclosed land in Butte County, to enjoin the defendant from taking down his inclosure and entering upon the land for the purpose of opening upon it a public road.

By his answer to the complaint, the defendant admits that he claims the right to enter upon the plaintiff's land for that purpose; and that unless enjoined by the court he will enter upon it in pursuance of an order made by the board of supervisors of Butte County on the eleventh day of April, 1885, which commands him, as road overseer of the district in which the land of plaintiff is situated, "to remove all obstructions on a road as originally established and declared a public highway, and to open the same.”

It is found as fact, that on the 3d of November, 1875, a strip of land thirty feet wide within the inclosure of the plaintiff was condemned for a public road; that the condemnation was made in a proceeding commenced for that purpose by the plaintiff himself and other real property owners, and that compensation was duly awarded and paid to the plaintiff for the land which was to be taken from him for the road.

In law, payment of the compensation awarded vested in the public the right of way over the land; and under the law, the public, acting by its authorized agents, had the right to proceed to locate and open the road upon the land, and in the execution of that right to remove any obstructions which might be upon it. (Pol. Code, sec. 2631.)

But the road was never in fact located and opened upon the land. The fact is, as the court finds, that the strip of land within the plaintiff's inclosure which was intended to be taken for the road was situated south of a line "between sections 6 and 7 and 5 and 8, to the northeast corner of the northwest quarter of the north

LXXI. CAL.-26

west quarter of section 8, township 17 north, range 4 east, M. D. M.," and "has never been opened, used, worked. or traveled as a highway except at a point on the east terminus of said line."

The reason why the road was not opened and located upon the land is, that the viewers appointed in the condemnatory proceedings laid out and opened the road on a strip of land thirty feet wide from "a point on the township line between ranges 3 and 4 east, about nine rods north of the line of road petitioned for, and thence running east, inclining south, until it intersected the section line between 5 and 8 in said township and range"; and it is contended that the location was a mistake.

But the road, as laid out and opened by the viewers, has been used and traveled by the public as the true road since November, 1875, and has been graded and kept in repair by the road overseer of the district in which it is situate as part of the public highway. No objections have ever been made by the owners of the land over which the road runs to the public use; and as it has been used and traveled by the public for more than ten years, the legal presumption is that the owners abandoned the possession of the land for the road, and therefore the road established upon the land is the public highway. "Public highways," as defined by the code law, are “roads, streets, alleys, lanes, laid out or erected as such by the public, or, if laid out and erected by others, dedicated or abandoned to the public." (Pol. Code, sec.

2618.)

A highway thus created continues to exist until it is vacated or abandoned by order of the board of supervisors of the county in which it is situated, or by operation of law or judgment of a court of competent jurisdiction. (Pol. Code, secs. 2619, 2621.) Or it may be changed, altered, or discontinued in the mode prescribed by article 6, chapter 11, of that part of the Political Code which

regulates the subject of highways in the counties of the state. (Pol. Code, secs. 2681-2692.) But there was no proceeding commenced under the law for changing, altering, or discontinuing the road. After discovering by a survey of the lines of the road made in 1885 that the road, as it has been used and traveled for over ten years, was originally located and opened by mistake of the road viewers, it was attempted to have the supposed mistake corrected, by having the road relocated and reopened upon the true line as disclosed by the survey.

But boards of supervisors have no jurisdiction of a proceeding to correct a mistake in the view and survey of a public road which has become a highway. They have only such jurisdiction and general supervision over roads within their respective counties as are given them by section 2643 of the Political Code. The order of the 11th of April, 1885, by which the board of supervisors commanded the defendant, as road overseer, said road to the public on its true line, was therefore in excess of the jurisdiction of the board, and conferred no authority on the defendant to enter upon the plaintiff's inclosure for the purpose of locating and opening upon plaintiff's land a new road in place of the road which has been opened and used for ten years as the highway.

Judgment reversed and cause remanded.

MYRICK, J., MCKINSTRY, J., SHARPSTEIN, J., and MorRISON, C. J., concurred.

[No. 11876. In Bank.- December 15, 1886.]

B. SMITH, RESPONDENT, v. S. K. TREFRY, AP

APPEAL FROM JUDGMENT

SCRIPT

PELLANT.

DISMISSAL

FAILURE TO FILE TRANPENDENCY OF MOTION FOR NEW TRIAL. An appeal from a judgment will be dismissed upon the failure of the appellant to file or prepare the transcript within the time prescribed therefor, notwithstanding a motion by the appellant for a new trial, together with the settlement of a bill of exceptions to be used thereon, is pending in the lower court.

APPEAL from a judgment of the Superior Court of Sacramento County.

The facts are stated in the opinion of the court.

John T. Carey, and Alexander & Brown, for Appellant. C. T. Jones, for Respondent.

MYRICK, J.- Motion to dismiss appeal.

Judgment was rendered in favor of plaintiff November 1, 1885. Notice of appeal from the judgment was filed, and served June 18, 1886. No transcript on appeal had been filed, and we have the certificate of the clerk of the court below that the appellant has not requested the clerk to certify to any transcript. Under such circumstances, the motion must be granted.

If, as is stated in a subsequent certificate of the clerk, a motion for new trial is pending in the court below, together with a settlement of a bill of exceptions to be used on such motion, the effect of such proceedings will be considered if an appeal should hereafter be taken from the ruling, when made on the motion for new trial. Until then we must regard the appeal, as the appellant has characterized it, an appeal from the judgment; and no transcript having been filed or prepared within the time prescribed therefor, the appeal is dismissed, but without prejudice.

SHARPSTEIN, J., MCKEE, J., MORRISON, C. J., and THORNTON, J., concurred.

[No. 9847. In Bank.- December 17, 1886.]

HENRY MILLER ET AL., RESPONDENTS, v. THOMAS REA ET AL. J. L. N. SHEPARD, APPELLant.

No

PARTITION APPEAL FROM PART OF INTERLOCUTORY DECREE TICE OF APPEAL SERVICE ON ADVERSE PARTIES. On an appeal from such specific parts of an interlocutory decree in partition as relate to a particular undivided interest in the land in controversy, the notice of appeal need only be served on the parties, or their attorneys, interested adversely to the appellant in the undivided interest involved in the appeal.

APPEAL from certain portions of an interlocutory decree of partition rendered in the Superior Court of Santa Clara County.

Motion to dismiss appeal. The facts are stated in the opinion of the court.

Page & Eells, for Appellant.

John Reynolds, S. O. Houghton, and P. B. Tully, for Respondents.

MYRICK, J.

ard.

Partition. Appeal by J. L. N. Shep

A notion was made to dismiss this appeal on the ground that the appellant had not served the notice of appeal on all the adverse parties or their attorneys.

The appeal is from specific parts of the interlocutory decree only, viz., the parts relating to certain portions of an undivided one sixteenth of the rancho Las Animas; the decree as to the remainder of the rancho is not involved in the appeal. The notice was served on the parties (or their attorneys) interested adversely to the appellant, in so much of the undivided one sixteenth as is involved in the appeal.

The motion is denied.

MCKINSTRY, J., MORRISON, C. J., and SHARPSTEIN, J., concurred.