111 Minn. 47 | Minn. | 1910
Appellant was the owner of forty acres of land adjoining the section line on the north. A legal highway, running east and west,
Although appellant failed to prove the exact location of his fence with respect to the section line, and to- the road as traveled, the evidence fairly shows that the fence was located upon appellant’s land, and a prima facie case was made out. It was admitted by respondent, in his answer, that he took down and removed the fence; and he justified his conduct upon the ground that the fence was within the limits of a public highway and that he was acting as a public official. In our opinion, the burden was upon respondent to prove what he alleged, and, having failed to do so, it was error for the trial court to dismiss the action at the close of appellant’s case.
Reversed and new trial granted.