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Mojave Desert History - Pioneer of the Mojave
Toll Road through the Cajon Pass

Driggers V Lane

Within three weeks after the deadline passed, Lane began making good his proclamation, and Driggers, now in control of the turnpike, was forced to file suit against him. The attorneys representing Driggers were Rolfe, Waters and John Brown, Jr. Lane used the law firm of Paris, Bledsoe and Goodcell. The complaint listed six declarations, which are noted here in brief:
  1. The State Legislature passed an act authorizing the construction of the road and the collection of toll for a 20-year period.
  2. The road was surveyed and constructed as required, commencing at Martin's Station and ending at a point two and one-half miles northeast of Fears' Station.
  3. Willis and Tucker sold their interests in the road to Brown.
  4. Brown leased the road to Driggers.
  5. On May 19 and May 21, 1875, defendant A. G. Lane "forcibly passed through the toll-gate thereon with one two-horse wagon without paying and refusing to pay the legal toll"; and again on June 12th, June 15th and July 21st, he "turned out of said road with his said two horse team, and passed around said gate on ground adjacent thereto, and again entered said road and continued traveling on the same without paying and refusing to pay the legal toll...."
  6. "That defendant is indebted to said plaintiff for said legal toll in the sum of $6 and according to law, for turning out of said road three times to avoid paying the legal toll $5; for each offense, $15, and for forcibly passing through said gate three times without paying the legal toll, $25 for each offense, $75, amounting in all to $96."
Lane's response to the suit took an interesting turn when he or his lawyers decided to challenge Brown's right to operate the lower tollgate at the southern end of the turnpike, where travel over the public road had been blocked. Obstruction of the public highway was expressly forbidden in Section 3 of the legislative act for the toll road, which stated, "Said road...shall not hinder nor obstruct the existing traveled road through said pass."

This was recognized even during construction, as the June 1, 1861, issue of the Los Angeles Star stated:
    This road does not in the least infringe upon, impede or obstruct the travel on the present road through the Pass, but the grant locates the turnpike through the canyon that was traveled by the large immigration that came into this valley in 1847, which pass for some eight or ten years has been almost entirely abandoned, except occasionally its being used as a pack trail.
In his answer to the complaint, Lane alleged that Brown could not legally collect toll at all on the lower portion of the turnpike, since for the most part that stretch of road had not been a new construction, but merely an improvement of the existing public road. "...Plaintiff is not now and has not been in charge of any toll road upon which he was authorized to collect toll," Lane asserted. Further, "...Said road is not and never has been a toll road, but the same is a Public highway free for all persons to travel over and has been so for twenty years last past."

His final allegation stated, "...Plaintiff has Erected and is Keeping a toll gate upon a public highway that has been in use for twenty years...and was used as a Public highway ten years before the passage of the act of Legislature...."

The public highway utilized Sanford's road in the west Cajon valley and then followed an alignment of the old Spanish Trail. Lane was not challenging Brown's right to charge toll for the section of his road in the east Cajon that crossed over the summit and ran down through Crowder Canyon. He was contesting that portion southerly of the present-day truck scales operated by the California Highway Patrol on Interstate 15, which was where Brown's turnpike and the public road both came together and followed the alignment of the Spanish Trail. This section was open to the public until Brown built the lower tollhouse at a point where the narrows were just a few yards in width.

The group of witnesses called upon to testify was an impressive assemblage of early pioneers who might have been expected to know every aspect of the history of the road, or of travel in Cajon Pass for that matter. Included were David Noble Smith and Sydney P. Waite, both of whom helped build the road and at one time served as tollkeepers on the turnpike. Also giving testimony were David Seely, Parley Heap, Chris Taylor, J. B. Forbes, Archibald Martin, a Mr. Prothero (probably John), and a half-dozen others. Surveyor Fred T. Perris and his chainman, J. E. Pick, also were called upon to testify.

Altogether fifteen witnesses were paid for appearing in court, most of them for three days. Fred Perris was paid an additional $50 for "diagnosis," which most likely meant he served as the equivalent of today's "expert witness."

The statements of the witnesses were not transcribed, but the judge's instructions to the jury were recorded, and show that the focus of the case centered on construction that was done 13 years previously in the vicinity of the lower tollhouse. The road in this area was extensively damaged in the 1862 storms, and Brown graded a new one on higher ground for about one-half mile parallel to the original road. This became the crux of Lane's defense, since Brown's tollhouse, fences and structures blocked the original track from public use.

The judge's instructions are summarized here, as they assist in understanding the direction of the case:
  1. The toll road could not be constructed in such a manner as to hinder travel to such a degree as to cause the public road to fall into disuse. If the jury found from the evidence that the public road had been so obstructed by Brown, then plaintiff could not recover his losses.
  2. If any portion of the public road was taken over by the plaintiff, and toll demanded from the defendant for passing over that section, then that toll was unlawful and the jury should not find for the plaintiff.
  3. This point introduces the issue of Brown's blockage of the old road that was damaged in the 1862 storms. The instructions reveal that the public was allowed free access to his newly-graded road until the lower tollhouse was constructed. The judge stated that if the jury found that at this time Brown had erected a fence, or corral and barn, or other obstruction across the narrows for the purpose of preventing the public from using the old track, then the plaintiff was to lose the suit.
  4. If the jury found that Brown had built any obstruction for the purpose of causing the one-half mile of old road to be abandoned by travelers so that it would fall into disuse, then the verdict should be for the defendant.
  5. If the road was simply straightened and improved at the narrows so as to cause the public to travel upon these improvements for three or four years prior to erecting the toll gate, then plaintiff could not win the suit.
  6. If the old road had been abandoned and had fallen into disuse before the erection of the fence, then the building of the fence did not affect the right to collect toll, and the jury could find for the plaintiff.
From the instructions it can be seen that the issues are complex, but essentially the jury is being asked to decide whether Brown had intentionally caused a section of the old road to fall into disuse, or whether it had been abandoned simply because a better road was available. If the latter were the case, then toll could be collected legally, in that the old road had become public because of usage over the years, and if several years passed without the road being traveled, the public lost that right.

The case was argued before the court on the evening of October 3, 1875, and after a short deliberation, the jury found for the plaintiff. The press received information that this was not the end of the issue, for on October 5th it was reported, "There will probably be more of the case.... We learn that another suit will be brought and that the case recently decided will be appealed to the Supreme Court." The decision was never appealed nor were there any other lawsuits, but the issue of excessive tolls and poor maintenance did not subside until the turnpike became a public road and the fees were discontinued.

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