Majority
p. 72WELSH, Road Overseer, v. GOULD. No. 12,434; April 18, 1889. 21 Pac. 364.
Headnote
Appeal.—A Finding of the Court will he Affirmed, where it cannot he said upon the record that the decision was erroneous.APPEAL from Superior Court, Butte County; Leon D. Freer, Judge.
Action by Columbus Welsh, as road overseer, against E. H. Gould, to abate a nuisance. Defendant had built a fence across one of the public roads running through plaintiff’s
p. 73
district, and the latter had removed it, only to find it rebuilt by defendant, who threatened to rebuild it as often as it was removed. On the trial defendant claimed that there never was a road there, and also, if there had ever been one, it had been closed by a decree of the superior court in an action wherein this defendant was plaintiff and the county of Butte defendant, to quiet plaintiff’s title to certain land therein described. Judgment for defendant, and plaintiff appeals.
John C. Gray, district attorney, for appellant; P. 0. Hundley for respondent.
The question upon which this case turns is whether there was a public road through the land of defendant. The court below found that there was not. And we cannot say upon the record before us that its action should be disturbed. We therefore advise that the judgment and order appealed from be affirmed.
We concur: Belcher, C. C.; Foote, C.
For the reasons given in the foregoing opinion the judgment and order are affirmed.