94 Minn. 403 | Minn. | 1905
This is an action of trespass, originating in a justice court of the county of Dakota. It appearing on the trial from the evidence that the cause was one involving the title to real estate, it was certified to the district court of the county of Dakota, The complaint alleged that the plaintiff was the owner of the East of the Northeast of section 29, township 114, range 16, and that on November 12, 1902, the defendant unlawfully and forcibly entered upon the land, and cut down a portion of the fence inclosing the same, to the damage of the plaintiff in the sum of $25. The answer alleged, in effect, that the plaintiff’s land was subject to the easement of á public highway, that the place where the alleged trespass was committed was within the limits of the highway, and, further, that the defendant removed the fence in question from the highway in discharge of his duty as a public officer. The trial of the cause, which was by the court without a jury, resulted in findings of fact and conclusions of law to the effect that no part of the land was subject to the easement of a public highway, that the defendant unlawfully removed the fence, to the plaintiff’s damage in the sum of one dollar, and that judgment accordingly be entered for him. It was so entered, from which the defendant appealed.
The evidence, which was practically undisputed, establishes these facts: The alleged highway starts at a point in a public highway near the center of the west line of the southwest quarter of section 29 in the township of Ravenna, in the county of Dakota (Township 114, Range 16); thence running diagonally in a northeasterly direction through the plaintiff’s land; thence to Etter, which is a railway station located at the mouth of a ravine in section 24 of the same town, and contains a church, schoolhouse, postoffice, station house, and other buildings; that the alleged highway is a continuous road, and has been traveled by the public for more than twenty-five years; that the plaintiff’s land where the road crosses it is sandy, and somewhat barren, and until recent years was unoccupied; that prior to fifteen years ago the travel did not follow in the same track over the plaintiff’s land, but for more than fourteen years last past the travel has followed in a single well-defined roadway; that during such fourteen years the highway has been continuously traveled by the public along such track without interruption or objection except that on July 3, 1902, a fence was built across the road by direction of the owner of the land; that the defendant, then one of the supervisors of the town, ordered the fence to be removed; the order was not complied with, and on November 12, 1902, the defendant removed the fence from the highway as an obstruction therein; and, further, that for at least six years next before the building of the fence the alleged highway had been kept in repair and worked and continually used and traveled as a public highway, but relatively only a small amount of the work was done on the part of the supposed highway which was on the plaintiff’s land; such work was done on such parts of the road as was reasonably necessary to accommodate the travel over it.
The clear inference from these facts is that the place of the alleged
It follows that the finding of the trial court to the contrary is not sustained by the evidence, and that the judgment must be reversed, and a new trial granted. So ordered.
Judgment reversed and new trial granted.