No. 21,855 | Kan. | Mar 12, 1921
The opinion of the court was deliverd by
The action was one to abate a nuisance caused by hedge fences standing in and overhanging a highway. The plaintiff prevailed, and one of the defendants, Robert Moulds, appeals.
Moulds owns the south half of the southeast quarter of section 7, and Taylor owns the north half of the northeast quarter of section 18, in the same township. Existence of a highway sixty feet wide between the two tracts was not disputed, and the controversy related to location of the highway.
About the year 1872, hedge fences were planted along the north side of Taylor’s land and along the south side of Mould’s land. The government cornerstone was then, as now, in place at the southeast corner of Moulds’ land, and he started his fence 30 feet north of the stone. The government stone at the southwest corner of Moulds’ land was also in place, and his fence ended 30 feet north of that stone. The Taylor hedge was planted 30 feet south of the line marked by the two stones. About the same time the owner of the northwest quarter of
Moulds says the lines and corners in question have never been permanently established by any survey since the government survey. The court cannot accept the statement in the form and in the sense in which it is made, but will not debate the matter. The location of the road as ascertained by the district court coincides with the government survey. Moulds says the Knapp survey was correct. The statement merely presents the issue in the case, and the court found to the contrary. Moulds says surveyor Dawson ignored certain regulations which he should have observed in making his survey. If this were a survey case, the court would be well satisfied with the Dawson survey, but will not debate the matter. The survey afforded evidence which the court could properly consider. Moulds says the court’s method of locating the quarter corner was erroneous. The method referred to was abandoned when it was found to be impracticable.
Moulds says the evidence failed to establish existence of a highway other than a highway by prescription, limited to the .land between the two hedgerows. If so, the fact is not important. The answer stated expressly that the road along the .section line between sections 7 and 18 was “laid out” about the year 1877, two years before the Knapp survey, and that the
Some minor propositions are presented, but it is not necessary to discuss them. The controversy related to the true location of the quarter corner common to sections 7 and 18, the issue was one of fact, and the finding that the true corner is 30 feet north of the west end of the Taylor hedge is abundantly sustained by competent evidence.
The judgment of the district court is affirmed.