
    SANTA CRUZ GAP TURNPIKE JOINT STOCK CO. v. BOARD OF SUPERVISORS OF SANTA CLARA.
    No. 9235;
    April 2, 1886.
    10 Pac. 404.
    Toll-road—Mandamus—Demurrer to Petition.—Where an application is made to a superior court for a writ of mandate to compel the board of supervisors of a county to locate toll-gates and to fix rates of toll on a certain road which it is claimed in the petition the corporation petitioner had a right to collect tolls upon, the superior court is in error if it sustains a demurrer to such petition on the ground that it does not appear therefrom that the petitioner had or owned any road, or right of w'ay for a road, as such a petition states, sufficient to entitle the petitioner to relief.
    Application for a writ of mandate.
    S. O. Houghton for appellant; J. H. Campbell and S. F. Leib for respondent.
   By the COURT.

This was an application to the superior court of the county of Santa Clara for a writ of mandate to compel the board of supervisors of that county to locate tollgates and to fix rates of toll on a certain road which it was claimed the corporation petitioner had a right to collect tolls upon. An order was made requiring the respondent to show cause why the writ should not issue. The respondent moved to quash the petition upon the ground that it did not appear that the petitioner had or owned any road or right of way for a road. The court treated the motion as a demurrer and sustained it, and the petitioner declining to amend, judgment was entered denying the application. We think the court erred in its ruling. Looking at the whole petition we think it states all the facts necessary to entitle the petitioner to the relief demanded. The judgment is reversed -and the cause remanded, with directions to the court below to overrule the demurrer.  