This action was brought under the authority conferred by an act of the legislature, approved March 31, 1891, and is entitled, “An act to enable the Coulterville and Yosemite Turnpike Company, a corporation, to sue the state of California for the loss and damáge suffered and sustained by said corporation by the construction of a road by the Yosemite Turnpike Road Company, under and by virtue of an act of the legislature of the state of California, entitled ‘An act granting the right of way to the Yosemite Turnpike Road Company over the Yosemite grant,’ approved February 17, 1874, and for the relief of said Coulterville and Yosemite Turnpike Company."

The facts stated in the complaint as constituting plaintiff’s cause of action are the same as those recited in the preamble of the act referred to, and are alleged as follows:

The complaint was demurred to generally upon the ground that it did not state facts sufficient to constitute a cause of action, and specially upon other grounds, but which, in the view that we have taken of the case, are not necessary to be considered.

*324 The demurrer was overruled by the court, and thereupon the defendant answered, setting up the following defenses: 1. A denial that the alleged exclusive privilege was ever granted to plaintiff, a denial that the road built by the Yosemite Turnpike Road Company conflicted with any exclusive privilege granted to plaintiff, and a denial of any damage; 2. That the Yosemite commissioners had no power to make, the alleged agreement; 3. That the court had no jurisdiction of the person of the defendant nor of the subject matter of the action; 4. The statute of limitations; 5. That the said act under which this action was brought is unconstitutional.

The case was tried by the court without a jury, and judgment given for the defendant.

Plaintiff appeals from the judgment and the order denying its motion for a new trial.

The questions raised by the record on this appeal, and upon which the conclusion we have reached is based, are: 1. Whether the alleged exclusive privilege was ever granted to plaintiff by the agreement entered into between it and the said commissioners; 2. If it was not, is the defendant estopped from showing that fact by the recital to the contrary in the preamble to the act referred to?

The first proposition is disposed of adversely to plaintiff by the finding of the court that the said commissioners did not agree with the plaintiff that it should have the exclusive right to construct or maintain a wagon-road on the northerly side of the Merced river.

This finding is fully justified by the evidence, and will not be disturbed unless the defendant is concluded by the recital set forth in the preamble to the act stated in the second proposition.

The sole object and purpose of that act was to empower the plaintiff to bring this action against the state; and, while it is true there is a recital in the introduction thereto that such exclusive privilege was granted *325 to the plaintiff, yet it is perfectly clear from the reading of the act that the legislature never intended by this recital to preclude the state from availing itself of whatever defense it may have had against plaintiff's claim prior to the passage of the act.

This is manifest from the language of the act itself, which provides that it shall be the duty of the attorney general “to defend said action and to interpose thereto such defenses, legal or equitable, as may exist, and which a private person under like circumstances might interpose.” It is further provided that “if in said action a judgment shall be entered in favor of the plaintiff therein it shall be the duty of the attorney general to take'an appeal therefrom to the supreme court of the state.”

If the act was susceptible of any other construction than the one we have given it, then the only question that could be determined on the trial of the case would be the amount of damages which plaintiff should recover.

In disposing of the case upon these grounds we do not wish to be understood as conceding that the commissioners had any authority whatever to grant the alleged or any other exclusive privilege.

The remaining questions discussed by counsel orally and in their briefs are not necessary to be considered.

Let the judgment and order be affirmed.

Rehearing denied.