Hope v. Barnett

Works, J. Action in ejectment, and for damages for detention of real estate and tearing down and removal of a fence. Answer denying all of the material allegations of the complaint, and alleging further, that the defendant Barnett was at the time of the alleged ouster overseer of the road district in which the real estate was situate; that the premises mentioned in the complaint were a public highway; that the fence mentioned was erected by the plaintiff, and by her permitted to stand in, and was an obstruction to, a certain public highway; that said defendant, as such overseer, notified plaintiff to remove the fence;' that without claiming the right to main[11]tain the fence, plaintiff failed and neglected to remove the same for more than ten days after said notice was given, whereupon said defendant, as such overseer, removed the fence with as little damage and injury to the materials thereof as was possible, and that the other defendants were employed by and assisted said overseer in removing said fence, and acted solely as his agents in so doing. The defendant Barnett also pleaded, by way of counterclaim, that the real estate in controversy was a public highway, and had been for twelve years, and as such was under the exclusive control of the board of supervisors and road overseer; that he, and the other defendants acting for him, had removed said fence, and that the same had been replaced in said highway by plaintiff, and asked that the same be declared a nuisance and abated.

There was a trial by the court, and findings and judgment for the plaintiff for the possession of the land and one hundred dollars, and against the defendants on their counterclaim.

1. The first point made by the appellant is, that some of the findings are inconsistent with each other and contradictory. It is claimed that because finding 2 is to the effect that the fence in question was erected “ along a public road known as the Modoc road, ” and finding 6 shows “ that the Modoc road, from which this same fence was removed, and in that part from whence it was removed, had been open to public travel, worked and used as a public road, for a period of eighteen months,” etc., they are conflicting, for the reason that one finding is that the fence is on the boundary of and the other that it is in the road.

The second and sixth findings are as follows :—

“ 2. That said premises have been for more than ten years inclosed on the northeast side thereof, and along a public road known as the Modoc road, by a good and substantial post-and-board fence about four hundred rods