118 Kan. 37 | Kan. | 1925
The opinion of the court was delivered by
The action was one for damages resulting from conspiracy to injure plaintiffs. The verdict and judgment were for defendants, and plaintiffs appeal.
The trouble grew out of the fact that a highway on the east side of Fidler’s farm was not opened for travel when the highway was located in 1907. Fidler owned the east half of the southwest quarter of section 17, in Stranger township, Leavenworth county. The southeast quarter of the section was owned by Marshall when the road was laid out, and at the times material to this controversy by Allenbrandt. The road was 40 feet wide, 20 feet on each side of the line between the two quarter sections. Years ago the owners planted hedge fences 30 feet apart in the vicinity of the dividing line, and the space between the hedges was used for a road. About the year 1919, Fidler sought, first to have the road put in better condition for travel, and then to have the road formally opened for travel. Opening the road would necessitate removal of one of the hedges. The road record was found to be ambiguous, and the exact location of the line at the center of the road was uncertain. A survey was made, which so located the road that to open it would require removal of Fidler’s hedge. Acting on the survey, Allenbrandt obstructed the road between the hedges. Fidler testified an offer was made to him that if he would pay Allenbrands $150, the road would be left as it had been. The offer was declined, and the authorities closed the existing road. The board of county commissioners brought suit to enjoin Fidler from interfering with opening the road, and subsequently, in an attempt to open the road, a portion of Fidler’s hedge fence was cut down. Fidler then brought suit to enjoin further destruction of his hedge. Both injunction suits were decided in Fidler’s favor. The survey was wrong, Fidler was right about the location of the road, and the west line of the road was east of his hedge. In May, 1922, Fidler procured judgment in an action of mandamus that the road be opened according to its true location.
Conceiving that explanation of the verdict might be found in the instructions, this court exercised its statutory authority (R. S. 60-3313), and directed the clerk of the district court to send up the
Misconduct of a juror was charged as a ground for new trial. To support the charge, plaintiffs offered in evidence two affidavits. The juror was called as a witness, was examined orally, and gave testimony which fully acquitted himself of misconduct. The question raised was one of fact. The district court believed the juror, and the finding against misconduct implied by the order denying a new trial is conclusive here.
The judgment of the district court is affirmed.