
    FRED ORTH and Another v. TOWNSHIP OF NORFOLK and Others.
    
    January 24, 1913.
    Nos. 17,898—(238).
    Highway — finding sustained by evidence.
    In an action to enjoin the laying out or working a highway over the land of plaintiffs, a finding that a road at the place in question had been used or worked for six years continuously as a public highway, and there was no public road at the place, was sustained by the evidence. [Reporter.]
    Action in the district court for Renville county to adjudge that a certain road was not legally laid out or established and to restrain defendant township and its supervisors from laying out, working, or constructing a highway over the line of road described in the complaint where it crossed the land of plaintiffs. The answer alleged that the road in question had been well traveled for more than 10 years and had been kept in repair and worked continuously by the supervisors of defendant township. The case was tried before Towers, J., who found there was no public road at the place in question and ordered judgment in favor of plaintiffs, perpetually restraining defendants from opening or working a highway thereat. From an order denying defendants’ motion for a new trial, they appealed.
    Affirmed.
    
      J. M. Freeman, for appellants.
    
      Murray & Baker and John A. Dalzell for respondents.
    
      
       Reported in 139 N. W. 1134.
    
   Per Curiam.

Action to enjoin defendants from laying, working, or constructing a highway over land owned by plaintiffs. The case was tried to the court, and resulted in a decision in plaintiffs’ favor. Defendants appealed from an order denying a new trial.

In 1895 the town supervisors attempted to lay out the highway in question, but admittedly the proceedings were fatally defective. The only defense to the present action was that there was a highway by more than six years use and working under R. L. 1905, § 1197. The trial court found that no road or portion thereof had been used or kept in repair and worked for six years continuously as a public highway along or on the section line where it was claimed to exist, and that there was no public road on said line or any part of it. The only question for our decision is whether this finding is sustained by the evidence. Our examination of the record leads us to the conclusion that this question must be, and it is, answered in the affirmative.

Order affirmed.  