
    Asa I. Baird v. Richard Clark.
    Where a highway sixty feet in width is established across a stream of water, and a bridge twelve feet wide is constructed along the center of such highway over the stream, and a proprietor of adjoining lands constructs fences from the outer limits of the road inwardly and along the bank of the stream to the bridge; Held, that such fences are, prima facie, at least, obstructions of the highway, and as such it is the duty of the supervisor of the proper district, on due notice, and doing no unnecessary damage, to remove them ; and for so doing an action for a trespass will not lie against him.
    Error to the district court of Wood county.
    In his petition, filed in the court of common pleas of Wood county, Baird, “ the plaintiff, says that the defendant, on the 11th day of July, A. D. 1857, at Wood county, Ohio, unlawfully, wrongfully, and without leave, entered upon the land of the plaintiff in said county, described, * * , and then and there unlawfully, maliciously and wrongfully threw down a large quantity of plaintiff’s fence standing thereon, being about two rods thereof, and then and thereby laid open the improved fields and inclosure of plaintiff, to his damage, of two hundred'dollars,” for which he asks judgment. To this petition the defendant, Clark, answered:
    “ 1. That he did not unlawfully enter upon the land of plaintiff described in his said petition, or wrongfully or maliciously or unlawfully throw down plaintiff’s fence, as set forth in his said petition.
    
      “ 2. But defendant says, by way of justification, that before and at the time of committing said supposed trespasses, there was a common public highway passing along and through the land of plaintiff, described in his said petition, along which all citizens and travelers had a right to pass with their carriages, teams, on foot with their flocks, and droves of horses, sheep, hogs and cattle, at all times and under all circumstances; that said highway is, and of right ought to be, of the width of sixty feet; that there flows across said highway, and over the land of said plaintiff, a stream of water known as a branch of the Portage river; that over said stream, and in said highway a bridge, twelve feet wide, has heretofore been constructed for the use and benefit of the traveling public along and in said highway; that the said plaintiff wrongfully, without authority, and to the material hindrance and inconvenience of travelers, and the public generally, before said supposed trespass, constructed said fence within the bounds of said highway and connected the said fence to the said bridge, on both sides of the bridge aforesaid. Defendant further says that, at the time of committing said supposed trespass, he was, and for a long time previous thereto had been, the lawful supervisor of road district No. 14, which district included within its limits said highway passing along and over said plaintiff’s lands, and that, as supervisor, he notified plaintiff to remove his said fence out of the said highway, which plaintiff failed.and refused to do; and that defendant, as said supervisor, at the time of the said supposed trespass, lawfully moved said fence, being about eight panels, peaceably, out of the said highway, and placed said rails along the sides of said road, doing as little damage thereto as possible; which are the supposed trespasses, by the said plaintiff in his said petition complained of, and this he is ready to make appear.”
    In reply to the new matter set up in the answer by way of justification, the plaintiff “ denies that he wrongfully, without authority, and to the material hindrance and inconver nience of travelers, and the public generally, before the commission of said supposed trespass, constructed said fence within the boundary of said highway, to said bridge.”
    The cause came to trial, in the district court, on appeal, at its July term, 1859, to the court, upon the pleadings and what the parties agreed the testimony was on the trial in the common pleas; and the plaintiff’s counsel “ asked the court to rule that, whether or not a given obstruction in a highway was a nuisance, was a question of fact, and that such an obstruction could not be abated by the defendant, unless it was proved to be an actual obstruction, hindrance or inconvenience to the traveling public.”
    The court refused so to rule, but found from the agreed statement of the testimony, “ that the defendant had reasonable grounds to regard the fence as an obstruction to the road, and did so regard it.” And the court held, for that reason, l£ that the defendant in removing the fence was not a trespasser.”
    The court ruled also, “that it was not necessary that the fence should, in fact, be an obstruction, but that, if the supervisor had reasonable grounds so to regard it, he had the right to remove the fence, doing the plaintiff no unnecessary damage.”
    And the court finding that the defendant’s answer was substantially sustained by the agreed statement of the testimony, rendered judgment in his favor.
    To all which rulings and findings of the court, and its refusal to rule, and to the said entry of judgment, the plaintiff excepted.
    Previous to the entry of judgment, the plaintiff moved for a new trial, on the grounds that said findings were against the evidence, and said rulings against the law; but the court overruled the' motion, and the plaintiff excepted.
    The agreed statement of the testimony is embodied in the bill of exceptions, but the report of the case does not require such statement to be set out.
    It is claimed that the district court erred in ruling as stated, and in refusing to rule as requested.
    
      James Murray, for plaintiff in error.
    
      W. P. Nolle, for defendant in error.
   Brinkerhoee, J.

In the district court the parties waived the intervention of a jury, and submitted the case to the court, for trial, upon what counsel agreed was the testimony given on the trial in the common pleas..

On the trial thus had in the district court, the court was requested by the plaintiff in error to rule,” or announce a certain legal doctrine or proposition; but the court refused so to “ rule,” and, on the contrary, “ held ” another and different doctrine. As there was no jury in the case to be charged, and either instructed or misled by the court, its holdings or rulings of the law, in the way of reasons for the judgment which it rendered, were, whether right or wrong, matter of entire indifference, provided that judgment, on the pleadings and evidence, was right. These rulings and holdings, therefore, can constitute no ground of error.

The twelfth section of the act of February 15,1858, “ prescribing the duties of supervisors, and relating to roads and highways ” (3 Curwen’s Sta±. 2134), and which is still in force, provides — “ That it shall be the duty of each and every supervisor to open, or cause to be opened, all public roads and highways which shall have been, or may hereafter be, laid out and established through any part of the district assigned to such supervisor, and the same to keep in repair, and remove, or cause to be removed, all obstructions that may, from time to time, be found thereon,” etc.

The answer alleges that the road in question was sixty feet wide, and that the plaintiff had constructed fences from the outer extremities of the road inwardly to the bridge, which was about twelve feet wide. The evidence abundantly sustains the allegations of the answer in this respect. These fences were, prima facie, at least, obstructions of the road, and as such it was the official duty of the defendant, after due notice, and doing no unnecessary damage, to remove them. In addition to this, there was evidence on which the court below might well find that they were an actual and serious obstruction, especially to the passage of herds and droves.

The plaintiff in error insists, on the authority of the case of Wall v. The Buffalo Water Works Co., 18 N. York Rep. 119, that, under the issue in this case made by the plaintiff’s reply, it was incumbent on the defendant to prove, not only that the fences removed were an obstruction to the road, but that the road was a lawfully established highway. The case from New York above cited was decided by a divided court— two of the judges dissenting, and a third being absent at the hearing; and we are not prepared to say whether, in a case where it became necessary to determine the question of pleading there ruled, we should feel ourselves constrained to follow that decision or not. But, if we grant the correctness of that decision, and admit that it was incumbent on the defendant to show the lawful character of the highway obstructed, we think there was sufficient evidence bearing on that point to sustain the finding and judgment of the court below. A number of witnesses, and among others the plaintiff himself, who testified as a witness in the case, speak of the fences as being within the limits and bounds of the road; there was abundant evidence of its accustomed use as a public highway ; no question was made on the trial as to the lawfulness of the road; and we think the court, acting as the triers of the facts, were justifiable in presuming, in such a case, that the witnesses spoke of and meant a lawfully-established highway. True — this parol testimony, bearing on the question of the lawfulness of the road, may have been incompetent, if objected to, as not being the highest evidence of which the subject was capable; but no such objection was made, and, therefore, its admission was no error.

Judgment affirmed.

Scott, C.J., and Sutliff, Peck, and Gholson, J.J., concurred.  