
    No. 9365.
    Dunbar, et al. v. Kohler.
    1. Roads — ■Upon Public Lands. A road upon public land used and traveled by the public for forty years held, upon the facts appearing in the record a public road.
    2. Pleadings — Counterclaim. Action to restrain to obstruction of a public highway. A cross complaint seeking relief against the obstruction by plaintiff of a different road, was stricken out as not permitted by the code.
    3. CUSTOM' — To Fence Across Public Road. No custom can justify the obstruction of a public road which has been used as such for many years.
    
      Error to Boulder District Court, Hon. Neil F. Graham, Judge.
    
    Mr. J. T. Atwood, for plaintiffs in error.
    Messrs. Tedrow & Fitzgerald, for defendant in error.
   Opinion by

Mr. Justice Denison.

The plaintiff, Kohler, brought suit against the defendants (plaintiffs in error) to enjoin them from obstructing a road and obtained a permanent injunction. The only substantial defense in their answer was that the road was not a public road. The road'appears to have been laid out and built when the land it crosses belonged to the United States, and was therefore within the United States statute giving a right of way for such purpose, and it has been in use about forty years. The court found that it was a public road, and we shall not interfere with that finding.

The defendants filed a cross complaint, seeking relief for alleged acts of the plaintiff in fencing up another, different road. This cross-complaint was rightly stricken out by the court. It was not a proper cross-complaint or counterclaim under the code.

It is objected that the width of the road or right of way was not shown. It is not always necessary, in order to obtain an injunction against obstructing a road, to show its width, and nothing appears in the present case to indicate that the width was relevant.

It is alleged as error that the court excluded testimony concerning a local usage or custom of the community to fence across roads. There can be no such thing as a usage or custom to justify fencing across a public road, which has been open nearly forty years.

There are other assignments of error which we do not consider it necessary to notice.

The judgment should be affirmed.

Judgment affirmed.

Garrigues, C. J., and Scott, J., concur.  