Patterson v. Munyan

Foote, C. This action was brought to recover damages for an alleged trespass upon the land claimed by the plaintiff to he owned by him and in his possession. • The plaintiff obtained judgment for one dollar and costs,, from which, and an order refusing a new trial, defendant has appealed.

The first contention urged by appellant for the reversal of the judgment and order is: That the burden of proof showing the location of the northwesterly line of a certain highway (No. 520), which was the boundary between the plaintiff’s land and the highway, was thrown upon the plaintiff, and that he failed to make sufficient [130]proof of that fact, and a nonsuit should have been granted, instead of being refused.

Even if it be conceded, without deciding, that the burden of proving this boundary line was thrown upon the plaintiff, we think he has done so, and the nonsuit was ^properly denied.

> The wrongful act complained of was, that the defendant had entered upon the plaintiff’s premises, and had removed and destroyed a part of his fence.

The defendant admitted that, as a road overseer, he had removed the fence, but justified his act on the ground that he was in the performance of an official duty in removing an obstruction which encroached upon a public highway.

The vital question involved in the controversy is, whether the land upon which the fence stood is within the public road, or without its limits. The evidence showed, as we think, sufficiently, that the road as opened by the proper authorities of the county, and laid out on the ground so as to exhibit its actual locality as used by the public, and allowed so to be used for a great number of years by the original owners thereof, was always the same. It further appeared that this road, which was, at all events, by dedication and user a public road, whether the proceedings had by the supervisors of the county to make it such were legal or not, was the actual road, which the plaintiff acknowledged as such, and built his fence so as not to encroach upon it. So that the claim made in the complaint that the plaintiff’s land, in his possession, was intruded upon is true. And that it is not in the road as laid out and used by the public is also true, according to the evidence. And the allegation of the answer that the alleged trespass, as committed, was not on the plaintiff’s premises, but in the road, was not proved.