delivered the opinion of the Court—Baldwin, J. concurring.

This action was brought to recover the sum of seven hundred and sixty-five dollars and two cents, claimed by the plaintiff as damages consequent upon the opening and laying out of a highway across his lands. The plaintiff has proceeded upon the supposition that the highway was properly opened, and 1ns land lawfully taken from him, and that he has a valid, legal claim against the county for the compensation secured to him by the Constitution. This view is manifestly erroneous. The compensation should have preceded or accompanied the taking, and without it, every act of the Board of Supervisors was illegal and void. The opening of the road was, so far as appears, a simple trespass, for which the plaintiff was entitled to his action against the parties.

Judgment affirmed.

See Bensley v. Mountain Lake Water Co. (13 Cal. 306.)