Luecken v. Wuest

Phillips, J. An action was commenced by appellee against appellant before a justice of the peace for trespass, in wrongfully entering upon and plowing the land of appellee. On appeal to the Circuit Court, and trial before the judge without a jury, the defendant was found guilty and damages assessed at $25 ; from that judgment this appeal is prosecuted. The appellee claims he had title to the locus in, quo, and was- in possession of the same; this is denied by appellant, and the claim is made that he or his landlord have had, and have, the actual adverse possession of the land in question. The preponderance of the evidence shows that appellee, for more than twenty years, claimed the disputed strip of land, and exercised acts of ownership over it; put up gates or bars across it; that he cleared a part of it and plowed it. His acts were open, actual and exclusive. From the evidence we fail to find such aqts of ownership exercised by appellant or his landlord over this land. It is, however, insisted that over this strip of land in con- • troversy, there was a public highway. The evidence shows that for access to his fields and for the convenience of his neighbors, this strip of land was used as a highway; but while so used, for many years the appellee kept a gate across the road, which was locked, and persons desiring to pass through would get the key to unlock the gate. The appellee testified that the road was closed by a gate “until since the stock law, some twelve, thirteen or fourteen years ago.” The road has, from this evidence, not been open so that the public could claim the same by prescription against the appellee. The possession of appellee being thus shown, and the acts of appellant proven, appellant was guilty. ■ Finding no error in the record the judgment is affirmed. Judgment affirmed.