
    Cattell v. Wilhelm et al.
    Evidence: highway : injunction. The facts that a fence has been maintained upon the same line for more than twenty years, and that two witnesses testified that, within their personal knowledge, the original fence was placed correctly, in accordance with the survey then made, were held sufficient to justify a perpetual injunction against its removal.
    
      Appeal from M useatine District Court.
    
    Thursday, September 24.
    This is a suit in equity, brought by the plaintiff to enjoin the defendants from removing, or in any way interfering with the plaintiff’s fence along the highway. The defendants, the road supervisors, and others who have intervened, admit the purpose to remove the fence, and claim the right to do so, on the ground that the same is in the center of the highwaj1", and an obstruction to travel, instead of being on the north line of the highway, as it should he.
    The District Court found the fact in accord with the plaintiff’s claim, and made the injunction perpetual. The defendants appeal.
    
      Cloud <& Broomhall, for appellants.
    
      Hanna dc Fitzgerald, for appellee.
   Cole, J.

This case rests solely upon the question of fact, whether the plaintiff’s fence is in the center, or on the north line of the regularly surveyed and established highway. The evidence is in direct conflict, and of course either conclusion reached must be in the midst of more or less of doubt. We concur with the judgment of the learned District Court; and ground our concurrence, very considerably, upon the facts that the road was established in 1842, and a fence was then erected upon the precise line of the present one, and so remained for near twenty years, without any question or controversy as to its proper location. At least two of the witnesses who testify in this case were connected with the laying out of the road, and state that, within their personal knowledge, the original fence was placed correctly on the north line of the road, as then surveyed and located. The witnesses on the other side, many of them at least, testify as to the location of the road, from subsequent surveys made from the notes,— courses, distances, etc. of the original survey.

Having this view of the case, we need not discuss the evidence; nor is it necessary to examine the legal questions respecting the statutes of limitation, or the rights acquired by prescription.

Affirmed.  