The opinion
Shattuck, J.,
dissenting:
•The decree of the court below should, in our opinion, be affirmed; and our opinion is grounded on the following considerations: The road in question was, at the time the plaintiffs undertook to deal with the authorities of Douglas County concerning it, a “public road” or highway, within the meaning of the statutes relating to the powers and jurisdiction of the County Courts, and those relating to the subject of roads and private corporations. It was such public road by 'user for a period of more than twenty-two years. The public have traveled it and made a thoroughfare and *324 highway of if continuously, as the evidence shows, since 1849; the Government of the United States spent large sums of money upon it; the Territorial Legislature adopted it as a Territorial road; the State statute of 1860 declared all Territorial roads (and this of course was included), county roads; the county of Douglas, in 1862, exercised control over it as a county road. Upon these facts, we think it could not have been deemed, April 6, 1874, anything less than a public road.
The plaintiffs, as a duly organized corporation, undertook, April, 1874, to agree with the County Court of Douglas County concerning the extent, terms and conditions upon which the road should be appropriated by the corporation. An agreement in writing was made, which we think is valid and binding. The objection that it was not entered in the journal of the County Commissioners’ proceedings, or some order concerning it recorded, is technical merely, and not substantial. The contract is in due form; purports to be done in term time, before two members of the County Commissioners’ Court. It is authenticated by the official signatures of the county judge and one of the county commissioners, and of the county clerk, and is on file with the clerk of the County Court, and a duplicate, under the seal of the county clerk, is in the hands of the plaintiffs. Were it found entered in the journal of the County Court, as of the day of its date, it is conceded that it would be unobjectionable.
We cannot conceive that the mere ministerial act of entering it, which might have been done by the clerk at any time after the term without an order, or at any subsequent time by an order of the court or judge, could add to its force or validity; and we think, that whenever it might have been, or may be, entered in the book, it must be deemed the agreement ,or act of the court at the time it was signed by the judge and commissioner, and left with the clerk and filed. ( 28 Cal. 335 and 416.)
The defendants, whether as private'individuals or as representatives of another corporation, were intruders and wrongdoers. As individuals, they clearly have no right; *325 and as no turnpike road company can lawfully put gates across tlie public roads without an agreement with the County Court, the defendants can claim nothing as representatives of such company, and the injunction was properly issued.
Mr. Justice Prim concurred in the dissenting opinion.