
    FERDINAND KALKBRENNER v. TOWN OF AUGUSTA and Another.
    
    October 13, 1911.
    Nos. 17,231—(56).
    Highway.
    In an action to enjoin defendants from constructing a graded roadway over plaintiff’s land, the finding that there was not a public highway at the place described was supported by the evidence, and the findings sustain the judgment. [Reporter.]
    • Action in the district court for Lae qui Parle county for an injunction restraining defendants from trespassing upon certain land or constructing an embank-, •ment for the use of a highway thereon. The answer denied' that defendants ever entered upon plaintiff’s land or that they made embankments, culverts or grades thereon, except upon a public highway. The case was tried before Powers> J., who made findings of fact and as conclusion of law ordered judgment in favor of plaintiff. From the judgment entered pursuant to the order, defendants appealed.
    Affirmed.
    
      Borgendale é Bclmle, for appellants.
    
      J. H. Driscoll, for respondent.
    
      
       Reported in 133 N. W. 1134.
    
   Pee Curiam.

Appeal from a judgment permanently enjoining tlie defendants from constructing a graded roadway over plaintiff’s land. The supervisors of the town of Augusta, having undertaken to grade and adapt for use as a road a four-rod strip of land along a section line, and having entered upon the land and begun the work, the owner of the land on one side of the section line brought this action to restrain the town and the road overseer from further prosecution of the work.

Upon the trial, the sole issue presented and tried was whether the strip of land in question was a public road, the town claiming that it.became a road in one or all of three ways: By the action of the town board in 1882 under authority of G. S. 1878, c. 13, § 73, by a later dedication on the part of the then owner of the land and an acceptance by the public, and by continuous public use for a period of ■over thirty years.

The testimony submitted in support of these claims was not convincing, and the trial court found: “That there is not, and was not at any time mentioned in the complaint, a public highway upon or along the north and south line between sections 1 and 2, township 118, range 46, in said town, of Augusta, nor at the place where the defendants committed the trespass and did the work hereinafter mentioned.”

Such finding is fairly in accord with the evidence and, with the other findings, including one that the defendants were about" to continue the unlawful work, sustains the judgment appealed from.

Affirmed.  