
    D. C. Kerr v. James Cornell.
    Filed June 16, 1896.
    No. 6657.
    Review: Conflicting Evidence. No question but one of fact determined upon conflicting evidence being presented by the record, the judgment of the district court is affirmed.
    Error from the district court of Johnson comity. Tried below before Bush, J.
    $. 1). Porter and Compton & Porter, for plaintiff in error.
    
      L. C. Chapman, contra.
    
   Eyan, C.

This action was brought by D. C. Kerr for damages alleged to have resulted from the tearing down of a fence across a section line whereby plaintiff’s inclosed lands were thrown open so that cattle destroyed a portion of his crop. There was presented only one question and that was whether the broken fence had been across a public highway. On the part of the defendant there was testimony that the road had been opened by proper authority and had been in use for more than fifteen years as a highway by the public before it was obstructed by the plaintiff. The evidence as to the opening of the road was, it is true, quite unsatisfactory and yet there ivas such evidence. On the part of the plaintiff there was adduced evidence tending to show that the alleged highway had never in fact been in use as such. The jury could properly have found either way upon this question. Its determination adversely to the plaintiff left no ground for recovery as prayed. There is no other ques: tion presented by the record and the judgment of the district court is

Affirmed.  