THOMAS BRADY v. R. BRONSON, SAMUEL BRECK, J. W. HOWARD, and JOHN CALLENDER, 45 Cal. 640

By the Court: Proceedings had been instituted to acquire the right of way for a public road, over the land on which the alleged trespasses were committed. The plaintiff in this action, being dissatisfied with the amount awarded to him as damages, brought an action and recovered a judgment for an amount larger than that which had been awarded to him, but his judgment had not been presented to the Board of Supervisors for allowance, and that amount had not been paid or tendered tó him, nor had that sum been set apart in the treasury for him, when this action was commenced.

This action was brought against the Roadmaster and others for removing the fences, etc., from the land of the plaintiff on the line of the proposed road. It has repeatedly been held, and it is the settled doctrine of this Court, that the right of way for a public highway cannot be acquired over the land of a private person, by proceedings instituted under the statute for that purpose, where such person does not consent to the taking, or does not waive his claim for damages for such taking, except upon the payment or tender of such damages.

The setting apart of that sum in the treasury for the land owner is, in certain cases, regarded as a sufficient tender. The rule is imperative, that the right of way will not vest in the public, until payment or tender to the land owner of the amount awarded or adjudged for his damages. (Murphy v. De Groot, 44 Cal. 51; Grigsby v. Burnett, 31 Cal. 406; Curran v. Shattuck, 24 Cal. 427; Fox v. W. P. R. R., 31 Cal. 538.) The plaintiff was entitled, under the allegations of his complaint, to introduce evidence of distinct acts of trespass committed by the defendants in removing his fence. Judgment and order affirmed.