Barry

Plaintiffs appeal from a summary judgment in favor of defendant Department of Public Works of the State of California in an action brought to enjoin said department from diverting a small portion, 8.10 acres of 2,400 acres, of Bidwell Park in Butte County, from park purposes to a freeway, a part of U. S. 99E, making a transverse crossing of the park.

The summary judgment was based upon Streets and Highways Code section 103.5 which specifically provides:

This section was construed in People v. City of Los Angeles (April 1960), 179 Cal.App.2d 558 [ 4 Cal.Rptr. 531 ], an action which similarly involved condemnation of a portion of Griffith Park in Los Angeles for freeway purposes, to mean that the State Highway Commission’s resolution of necessity was final and presented no justiciable issue.

Here, the State Highway Commission did adopt the resolution of necessity; appellants do not question the applicability of People v. City of Los Angeles, supra, to the facts of this case, and do not deny that the summary judgment was proper under the rule of that case; but they urge us to overrule it, contending that said section 103.5 does not authorize a determination of greater necessity by…