90 Minn. 355 | Minn. | 1903
Plaintiff is the owner of a quarter section of land in Blue Earth county. Defendants, one of whom was the overseer of highways, under the claim that there was a legal road upon a portion of this tract entered thereon, plowed and graded-a strip about sixty rods in length without the permission of the plaintiff. This action was brought to recover
Upon proper assignments the question of fact is presented on this review whether'that portion of plaintiff’s land where the plowing and grading were done was a public highway. If it was, defendants’ acts were justified; if not, the trespasses entitled plaintiff to damages, and the admitted purpose of defendants to maintain a highwajr at the disputed locus justified an in junctional order to restrain them from so doing. Our examination of the evidence supports the view that it reasonably sustains the conclusion of the trial court that the place where the plowing and grading were done was not a highway, as well as that the damages were properly awarded. During the trial it appeared that the portion of plaintiff’s land where the trespasses were committed connect.ed with and were adjacent to other public highways, which were on the sanie quarter section. And to some extent the evidence presented a controversy whether the place where the trespasses were alleged to have been committed was the legal way, rather than different ones, also’ on plaintiff’s land. However, the real question involved was over the strip where the plowing wa.s done, and traveled roads at other places were not disputed to be lawful highways.
It is urged very strenuously that the findings and order of the court went too far; that defendants, who were authorized to act for the town in improving its legal ways on plaintiff’s quarter section, were thereby restrained from exercising authorized lawful rights. While it is and has been conceded that there weré highways on plaintiff’s quarter section which the town, through its servants, had a right to improve, the 'ihatefial issue contested in this suit was over the strip of land where the trespasses were committed, to which it is clear the court’s attention at
Under the course adopted at the trial we do not think appellants are entitled to an absolute reversal of the order appealed from. If, as probable, it would be found by the trial court from a review of the evidence that the findings should have been limited in their scope to a specific description of the land where the trespasses were, under its findings, committed, and to which the same were intended to apply, defendants, by their failure before the new trial was denied, to insist upon their rights in this respect, are responsible for the injurious consequences which are liable to restrict their lawful privileges hereafter.
The order appealed from is affirmed, without prejudice, however, to the defendants’ right, if they shall be so advised, to ask for a modification of the findings and order for injunction to apply the samé ,to and more particularly designate the specific locality where the trespasses were committed.
Order affirmed.