Mahon v. San Rafael Turnpike Rd. Co.
California Supreme Court
Appeal from the District Court, Seventh Judicial District, County of Marin. In October, 1865, a corporation was organized to build a toll-turnpike, road from San Quentin, Marin County, to San Rafael, called the San Rafael Turnpike-road Company. They commenced the road about that time, and constructed it across a tract of swamp and overflowed land, near San Quentin.
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Appeal from the District Court, Seventh Judicial District, County of Marin. In October, 1865, a corporation was organized to build a toll-turnpike, road from San Quentin, Marin County, to San Rafael, called the San Rafael Turnpike-road Company. They commenced the road about that time, and constructed it across a tract of swamp and overflowed land, near San Quentin. The company was organized under the laws of this State for the construction of toll-roads, and after the road was completed collected tolls from those who passed over it. In 1868, the plaintiff obtained two patents from the State…
1Opinion of the Court
By the Court, McKinstry, J.:
The cases cited by appellant’s counsel do not sustain his first point, that “an action of ejectment will not lie to recover the possession of a turnpike road, when the defendants only use the same for collecting tolls from the traveling public.” Ejectment is maintainable only for corporeal hereditaments. (Tillinghast’s Adams, page 19.) But this action was not brought to recover the right of way, but the possession of the lands, the plaintiff having shown the fee in himself by virtue of the patents introduced in evidence. The exclusion of the plaintiff from entering…
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