Tomasini v. Taylor

Mr. Justice Bean, after stating the facts, delivered the opinion of the court. This case, in our opinion, is on all fours with Smith v. Gardner, 12 Or. 221 (6 Pac. 771, 53 Am. Rep. 342), which was a suit to enjoin a trespass upon real property, wherein the defendant justified on the ground that the place where the trespass was committed was a public highway. The court held that the manifest object of the suit was to determine whether a highway existed across the lands of the plaintiff, and that equity did not have jurisdiction to try and determine that question, but plaintiff’s remedy was at law. The same question is presented here, and it is a matter of no consequence that in the case cited the [578] highway was claimed by dedication, and in this by prescription. The decree of the court below is therefore affirmed. Affirmed.