39 Iowa 607 | Iowa | 1874
I. On the trial, after plaintiff’s evidence was closed, the defendant introduced a written notice by him as road supervisor, to the plaintiff to immediately remove two lines of fence, describing them, out of the public road, one line being eighty rods long, and the other one hundred and sixty rods. The defendant then testified that he served said notice on the plaintiff, May 24, 1810; and was then asked by his counsel, “ What did you say to Mr. Mosher? ” Answer— “ I warned him to work on the road with his team Saturday, May 28, and told him to move his fence on the edge of'the ditch Saturday, so I could work the road on Saturday at that place where I earned him to work the road. Do not recollect that I said anything to him about the balance of the fence referred to in the notice.” This was duly objected to as irrelevant, incompetent, and as tending to contradict or modify the written notice; but it was admitted, and thereon the first error is assigned.
II. But the court gave, also, in connection with this same matter, an instruction to the jury as follows: “ 8. The notice introduced in evidence in this case, in writing, cannot be varied, contradicted, or modified by oral statements of the defendant at the time of the service thereof; and the evidence given by the defendant as to what was said at the time of such service cannot be considered for that purpose by you; but it may be considered by you, so far, if at all, as it bears upon other matters in the case.” In our view, this instruction, in connection with the evidence above set out, affords no ground for complaint on the part of the plaintiff.
The fourteenth and fifteenth instructions given, and to -which objections are made, embody the legal principles respecting highways by prescription, which have been heretofore announced by this court, and hence we need not review them more at length here. See Onstot v. Murray, 22 Iowa, 457, and the cases following it.
Affirmed.