Carter

This action was brought to recover the sum of five dollars, the season’s tolls alleged to be due from the defendant for traveling over the Sonora and Mono toll road.

In 1860 a toll road was constructed from Sonora, in Tuolumne county, to Bridgport, in Mono county, under franchises granted by the counties of Tuolumne, San Joaquin, and Stanislaus.

Prior to May, 1883, the franchises had expired, and the road under the law became a public highway. The portion in question here is fifty-eight miles in length, and extends over a rough, mountainous country.

On the seventh day of May, 1883, the board of supervisors “upon proper petition filed” vacated and discontinued the road as a public highway, and on the same day granted to J. B. Carter, “his associates and assigns,” a franchise to construct and maintain a toll road for a period of fifteen years, “over that portion of the Sonora and Mono wagon road hereinafter described.”

Carter took possession of the road and collected the tolls according to rates fixed by the board until January, 1893, when by deed he conveyed the franchise and road to plaintiff; soon after which he died. Since that time plaintiff has been in pos *369 session and…