Sutton v. Nicolaisen

BELCHER, C. The plaintiff brought this action to recover damages for trespasses committed by defendants by entering on his land, and tearing down about thirty feet of his boundary line fence, and digging up the soil, and destroying the grass and vegetation growing thereon, and also to obtain an [349]injunction restraining defendants from repeating the said trespasses, and from constructing, as they threatened to do, an open road through and across plaintiff’s said land. The defendants, by their answer, denied that they had committed, or threatened to commit, any trespasses upon the land of the plaintiff, or that he had been damaged in any sum whatever; and they alleged that for more than thirty years there had been a public highway, forty feet wide, the line of which was specifically described, over and across the land of plaintiff, which had been continuously used by the traveling public during all of said time; that defendants were residents and taxpayers in the county in which the road is situated, and were accustomed to pass on foot and with vehicles over the same to their postoffice and market place; “that on or about the third day of April, 1894, said open traveled way was, by some person, obstructed by a wire fence constructed across the same, and by trees felled across the boulders rolled into said road or way, totally preventing the defendants from traversing the same; that defendants carefully, and with as little injury as possible, removed said obstructions from said road or way; and that said acts are and constitute the pretended trespass complained of by plaintiff.” The case was tried without a jury, and the court found that all the averments of the complaint, except as to the amount of damages sustained, were true, and that all the denials and averments in the answer were untrue; that plaintiff had been damaged by the wrongful and unlawful acts of defendants in the sum of $20; “that said defendants, if not restrained, will do plaintiff irreparable injury, and plaintiff has no adequate remedy at law”; “that the land described in defendants’ answer is not a public highway”; and “that the defendants, or either of them, have no interest, easements, or right of way therein.” Judgment was accordingly entered, awarding the plaintiff damages in the sum of $20 and a perpetual injunction, as prayed for. From this judgment and an order denying their motion for a new trial the defendants appeal. In support of the appeal, it is earnestly contended that the findings were not justified by the evidence and that the judgment should therefore be reversed.

The principal question involved in the ease and presented for decision is: Was or was not the strip of land described in the answer shown by the evidence to be a public highway? It was proved that respondent settled upon his land in 1881,