Ricks v. Lindsay

BELCHER, C. It is alleged in the complaint in this case that the plaintiffs were the owners, as tenants in common, of a strip of land in the city of Eureka, described as a strip fifteen feet wide, and extending from the southeast corner of Tenth and H streets southerly along the east side of H street one thousand and eighty-one feet, and that on the thirteenth day of May, 1890, the defendant unlawfully entered upon the said strip, and took down and removed therefrom a fence placed thereon by plaintiffs, to their damage in the sum of $250, for which they prayed judgment. The answer of the defendant alleged that the said strip of land was and is a part of H street, an open public highway within the corporate limits of the city of Eureka, and that the plaintiffs had no right to the use, occupation, or possession of said strip, or any part thereof; that during all the times mentioned in the complaint defendant was the city marshal of said city, and that the common council thereof had power to regulate all streets in the city, of which H street was one; that on or about the first day of May, 1890, the plaintiffs unlawfully encroached upon and obstructed the said street by building the said fence thereon; that on the sixth day of May, 1890, the corporate authorities of the city passed an order or resolution directing defendant, as city marshal, to remove all obstructions on H street; and that defendant thereafter, acting under said order, and not otherwise, removed said fence from said strip quietly and peaceably, the same being a public nuisance. The case was tried by the court, without a jury, and, after finding sundry probative facts, the court found as follows: “That the land described in plaintiffs’ complaint is a portion of that part of H street lying between said Tenth and Fourteenth streets, and is a strip on the east side thereof, fifteen feet wide and one thousand and eighty-one and eight-tenths feet long. That in the month of April, 1890, plaintiffs inclosed said strip of land with a fence. But subsequently, and prior to the bringing of the action, the plaintiffs themselves tore down that portion of said fence erected between Tenth and Eleventh streets, leaving involved in this action only the fifteen feet extending from Eleventh to Fourteenth streets. That the defendant, acting as marshal of the city of Eureka and under the direction of the common council thereof, removed said fence from said strip of land lying between Eleventh and Thirteenth streets [580]and from said H street. That defendant removed the same quietly and peaceably, and that said act of defendant in so removing the same is the alleged act of trespass complained of by the plaintiffs herein, and none other.” And the court further found, as conclusions of law, as follows: “ (1) That H street, from Tenth to Fourteenth streets, as above set forth, is a public street for travel, seventy-five feet wide, for all persons having occasion to go that way on foot or with teams; (2) that the fence removed by defendant was an encroachment upon and an obstruction to said H street, and the defendant had the right to remove the same therefrom, and is entitled to a judgment for his costs herein expended.” Judgment was accordingly entered that the plaintiffs take nothing by their action, and from that judgment and an order denying their motion for a new trial they have appealed. The motion for new trial was made upon a bill of exceptions, which contains numerous specifications of errors in law committed by the court, but no specifications, or attempted specifications, of the particulars in which the evidence is alleged to be insufficient to justify the decision. Only one error in law is referred to in the brief of appellants, and we may assume, therefore, that the other alleged errors are waived. But, whether waived or not, it is enough to say of them that we think the rulings of the court were proper. The error relied upon is that the court refused to adopt a certain finding of facts which plaintiffs prepared and requested the court to make. It does not appear that any exception was taken to this-refusal, but, conceding that the point can be made without an exception, still we see no error in the action of the court. Under our present system of practice, the court is bound to find upon all the issues without any request to do so, and the parties here have no right to dictate as to what findings shall be adopted. Requests for findings are therefore unnecessary, and it is not error to disregard them.