Brown v. Stark

Vanclief, C. This is an action in the nature of trespass for entering upon the plaintiff’s land, — a five-acre lot, — and removing and destroying a fence, and for a perpetual injunction restraining defendant from repeating the trespasses complained of.

The answer of the defendant confesses the entry upon the lot described, and the removal of a portion of the fence, and seeks to justify these acts by averring that the portion of the fence removed was an obstruction to a public road or way through said lot, and specially alleges the facts and acts of the plaintiff and his grantor claimed to constitute a dedication of the way to public use, and an acceptance and use thereof by the public and by the defendant; and further alleges that the entry of the defendant upon the way, and the removal of that portion of the fence obstructing it, were the acts complained of as trespasses.

In response to the issres made by the pleadings, the court found the facts and law as follows: —

“1. On the twelfth day of October, 1871, Craven P. [638]Hester was the owner in fee of the land described in the plaintiff's complaint, consisting of five acres fronting 263 4-12 feet on the Alameda road referred to in the complaint, and running back 830 3-12 feet; that on said day-said Craven P. Hester conveyed to his daughter, Sallie P. Maddox, for the consideration of natural love and r-Tection, said tract of land, which thereupon became and was her separate property.

“2. Afterward, and prior to the nineteenth day of April, 3878, said Sallie P. Maddox, the said owner of the whole of said land, caused the same to be surveyed and laid off into lots of convenient size for the purposes of sale, with a street or road fifty feet wide running through it about the center, and extending from the Alameda road to the opposite or northern end thereof, and caused a plat of said survey to be made, showing said road or avenue, which was called and laid down on said map as ‘Hester Avenue,’ which plat was exhibited to buyers, and a copy thereof posted up on the premises, offering the lots for sale.

“3. That afterward, and in the year 1878, Sallie P. Maddox sold three of said lots by said plat, and made, executed, and delivered (with her husband) deeds of conveyance thereof, describing said lots as bounded on one side by said Hester Avenue. Two of these were sold in one parcel to S. A. Bishop, which fronted 100 feet on said Hester Avenue, and ran back 110 feet, and is the same property conveyed by said S. A. Bishop, by deed dated May 11, 1881, to Maggie Stark, wife of the defendant, which lots Mrs. Maggie Stark has continuously owned and improved, and are located about 235 feet north of said Alameda road. The other lot was sold and conveyed as aforesaid to Mrs. Mary Pillot in December, 1878, and fronts fifty feet on said Hester Avenue, and lies just north of the said Bishop lot. Said Hester Avenue was thrown open to public travel by said Maddox and wife prior to the sale of said lots, and was by them fenced off