Gloster v. Wade

Foote, C. According to the allegations of the complaint in this action, Wade had torn down the fence on the land of Gloster, which the latter had replaced, and .the former was threatening again to tear it down at a [408]certain point, and travel across the plaintiff’s land, in violation of his rights and to his damage. An injunction restraining the defendant from doing the injuries threatened, and for the recovery of damages for the alleged trespass already committed, were prayed for.

The defendant denied all the material allegations of the complaint, and set up by way of justification and de- ' fense for his alleged acts that they were done in accordance with law, in pursuance of an order from the board of supervisors of the county, he being a road overseer, and that the land alleged to have been intruded upon by him had become, and was by dedication, a public road and -highway. The cause came on to be tried before a jury, which was discharged during the progress of the trial by the court, for sufficient reasons.

That tribunal then proceeded to hear the cause, made its findings of fact, and rendered judgment for the plaintiff as prayed for, except for damages, which were expressly waived; from which, and an order denying a new trial, defendant appeals.

The whole matter turns upon the point as to whether or not there had been for some twelve years immediately prior to the trespass complained of any law upon the statute-book applicable to the county of Modoc, by which the public could by user acquire a right to a highway as such. The court below held no such law to exist, or to have existed within that time.

The appellant’s contention is, that such a law did exist, and was operative in this cause, by means of which the public, by the use of the land in question continuously for more than five years, had acquired it as a public road and highway in Modoc County; that the dedication of it as a highway was complete.

In section 2619 of the Political Code (as it existed up to the passage of the- act of March 30, 1874, which latter act is found at page 116 of Amendments to the Codes, ■1873 and 1874), it is provided, among other things, that [409]