Opinion of the Court-Sawyer, J.

upon lands already patented to him. This is precisely the case under consideration, and if Castro's representatives by making himself a party to the proceedings, "must be bound by its results," as observed by Mr. Justice Miller-and we think he must-then defendant Semple is concluded in this case. Plaintiff's is the elder grant, and it was first presented for confirmation to the Board of Land Commissioners. Both claims having been surveyed so as not to interfere, they were ordered to be returned into Court, "for examination and adjudication," on application of defendant. On leave of the Court he intervened in plaintiff's proceedings; had plaintiff's survey-and in another proceeding his own-set aside, and new surveys ordered; and succeeded in getting his second survey first confirmed. Afterwards plaintiff's survey came up for determination, and although embracing the lot in question, which had already been included in defendant's survey, on motion of plaintiff's counsel to confirm his survey, the Court rendered a "decree finally confirming, approving and adopting the said survey as the true, proper and correct survey of the said land finally confirmed as the Jimeno Rancho, 'Charles D. Semple, intervener, in person appearing in Court and consenting to said motion and official survey.'" And said defendant Semple also afterwards on the same day "waived in writing, under his hand, all right to appeal from said decrce." This must be regarded as an adjudication between the parties, and with the consent of defendant, that the plaintiff's prior grant is properly located; and that the defendant's subsequent grant to the extent of the interference was improperly located, and *this determina- [662] tion is final and conclusive upon the rights of the

parties. It follows that the title is in the plaintiff and the judgment must be affirmed.

And it is so ordered.

Statement of Facts.

JEROME LINCOLN' v. COLUSA COUNTY.

COMPLAINT FOR DAMAGES FOR LAYING OUT HIGHWAY. -A complaint in an action against a county for damages sustained by the location of a public highway over plaintiff's land, laid out under the Act of 1861, fails to state a cause of action, unless it avers that the plaintiff had attempted to come to an agreement with the Board of Supervisors as to the amount of damages sustained, and could not agree with the Board as to such amount.

DAMAGES FOR LAYING OUT A PUBLIC HIGHWAY.-Under the Act of 1861 a person whose lands have been taken for a public road has no right of action against the county for damages until after a fair and honest attempt on his part to agree upon the amount with the Board of Supervisors.

EVIDENCE AS TO AGREEMENT WITH BOARD FOR DAMAGES FOR LAYING OUT ROAD. The filing of a petition with the Board of Supervisors claiming damages in the event of a public road being laid out over the petitioner's land, is no evidence in an action brought by him for damages, that he could not compromise or agree with the Board respecting the damages.

1 POWER OF LEGISLATURE IN RELATION TO DAMAGES FOR OPENING ROADS.— It is competent for the Legislature to fix the mode of condemnation of land for public highways, and the method by which damages shall be ascertained, and the proceedings to be had for their recovery, and as strict a compliance with the Act is required by those claiming damages as by the public making the condemnation.

APPEAL from the District Court, Tenth Judicial District, Colusa County.

The complaint described the tract of land, and alleged that plaintiff was the owner of it; that a petition was presented to the Board of Supervisors of Colusa County praying for the location and establishment of a public road from the town of Colusa to the northern boundary-line of Colusa County; that the Board appointed viewers to survey and lay out the road; that on the day that these proceedings were had, the plaintiff presented his petition protesting against and objecting to the action of the Board in laying out said road, and claiming damages therefor, should said road be laid out; that subsequently, the viewers thus [663] appointed made their report to the *Board, to the

1. Cited, Kimball v. Board of Supervisors, 46 Cal. 23.

Argument for Appellant.

effect that they had surveyed the road, which ran about one mile and a half through plaintiff's land, and that they had awarded to him, as damages, only one dollar therefor; that the report of the viewers was thereupon accepted and approved by the Board, the road declared a public highway, and ordered to be opened by the Road Overseer of the proper district. The complaint charged that the plaintiff had been greatly damaged by the location of the road; that he was dissatisfied with the award of the viewers, and refused to receive the same. The complaint further charged that the road as located took from the plaintiff a considerable portion of valuable farming land, and necessitated the building of several miles of fencing for the inclosure of plaintiff's land, besides cutting off a portion of the tract of land from the benefits of the water of the Sacramento River, all to plaintiff's damage to the amount of three thousand dollars.

Upon the trial of the case the plaintiff, after proving that he was the owner of the land, and after making his proof upon the question of damages, introduced in evidence a copy of his petition or protest against the action of the Board of Supervisors, and rested his case.

The petition did not state what damages the petitioner would sustain, nor what amount he claimed.

The plaintiff appealed.

The other facts are stated in the opinion of the Court.

H. H. Hartley, for Appellant.

It is not shown that there was any objection to the demand for damages, because there was no specific amount claimed. That the Board knew that the plaintiff, by his remonstrance and petition, claimed more than nominal damages, is beyond question; they could have allowed him one cent. If the Board was made to understand what plaintiff desired, it was all the law requires, and their refusal to comply with what is reasonable, puts an end to the discussion.

*It was the duty of the Board, under the Constitu- [664]

Argument for Appellant.

tion, to have allowed and tendered him an equivalent for the loss. (Henry v. Underwood, 1 Dana, 257.) If, then, the plaintiff has presented his petition to the Board of Supervisors of said county, and said Board has acted upon it and refused to allow him a reasonable sum for his damages, or any more than nominal damages, and that he was dissatisfied with the allowance, and that the Board and he could not agree as to the amount, and that he has refused to receive the sum allowed, then the law, as contended for by the respondent's attorneys and the District Court, has been fully complied with, and the plaintiff is entitled to his action and his actual damages. The law gives the damages, and the Court should not have refused them to him.

A party damaged by acts of a county, city or State, by taking his property for public uses, has his remedy without statutory enactment; he has his right of action independent of the statute.

It should be borne in mind that this Road Act provides no time for the final hearing, mentioned in Section 7 of the Act. The order of the Board confirming the award may be made, the Board adjourn, and not meet again for three months. How, then, is a damnified land-owner going to make an effort even to agree with the Board within ten days? There are ten chances to one that there will be no meeting of the Board within ten days. Negotiating with the individual Supervisors will do no good.

The language in the seventh section of the Road Act of 1861, in reference to the person damaged not being able to agree with the Board of Supervisors, means nothing more than that if he accepts the award of viewers, or makes any agreement with the Board for any other sum, he shall not sue the county. And there is no more necessity for his proving that he has not made an agreement with the Board, or has made any effort to do so and failed, than there would be in any action of tort in proving that the plaintiff had not made any agreement with the defendant as to the amount of damages.

Opinion of the Court-Shafter, J.

*Haich & McQuaid, for Respondent.

[665]

We maintain that the plaintiff has no right of action against the county. He had no right to sue the county until he had first presented his claim to the Board of Supervisors of the county for allowance, and until after they had rejected it in whole or in part. He had no right to sue the county until he had made an effort to "agree with the Board of Supervisors as to the amount of damages sustained" by him. (Road Law, Stat. 1861, Sec. 7.)

It has been said that a county is not a person or a corporation. Again, it has been said that counties are quasi corporations. At common law, an action did not lie against a county; and such was the law of this State until the Legislature passed "An Act prescribing the manner of commencing and maintaining suits by or against counties," passed May 11, 1854. The rule at common law proceeded upon the principle that a county government is part of the State government, and is, pro tanto, a part of the sovereign power. (Hunsaker v. Borden, 5 Cal. 228; Gilman v. Contra Costa Co., 8 Cal. 52.)

The twenty-fourth section of the Act creating a Board of Supervisors in the several counties of this State, passed March 20, 1855, shows how a person having a claim against a county may acquire a right to commence his action. The Supreme Court of this State have frequently had occasion to consider the section of the statute above quoted, with reference to the right of the citizen to bring and maintain actions against a county. (Price v. Sacramento Co., 6 Cal. 254; McCann v. Sierra Co., 7 Cal. 121.)

By the Court, SHAFTER, J.:

This is an action to recover three thousand dollars as damages alleged to have been sustained by the plaintiff by reason of the location of a public highway over his land by order of the Board of Supervisors of the defendant county.

A nonsuit was ordered at the trial on the ground that it was neither alleged in the complaint nor [666] proved as a fact, that the plaintiff prior to the com