Blood

Appeal from a judgment taken within sixty days after its rendition.

The action is to recover tolls claimed to be due from defendant for passing over plaintiff’s alleged toll-road. The validity of the franchise is questioned.

An act of the legislature of this state, passed April 8, 1863, granted to certain persons named, to be incorporated as “ Silver Mountain Turnpike Company,” a franchise to construct and maintain a toll-road from a point in Calaveras County to a point then in Mono County, now Alpine, — the franchise to continue for twenty years, *82 —tolls to be fixed by the supervisors of the county of Calaveras.

The record contains no direct evidence that the persons named, or their assigns, or the corporation, ever constructed the road under this act. The plaintiff, however, testified: “I have been on this road twenty-seven years. It has been a toll-road for the use of the public ever since that time. It has been a toll-road ever since 3862. This is the same road referred to in the act of the legislature of this state of April 8, 1888. People have traveled over this road both in Calaveras County and in Alpine County ever since then by paying tolls.”

The road was known as…