Rogers v. Town of Aitkin , 77 Minn. 539 ( 1899 )

START, O. J.

This is an action for a perpetual injunction restraining the defendant town and its supervisors from entering upon or interfering with the land described in the complaint. The defense is that the premises were subject to the easement of a highway. The cause was tried by the court without a jury, and judgment on the merits in favor of the defendants was entered, from which the plaintiff appealed.

The sole question on this appeal is whether the evidence justified the finding and conclusion of the trial court to the effect that the locus in quo was a public highway. It must be conceded that the records as to the laying out of the highway did not, standing alone, establish its existence; but we are of the opinion that the evidence taken as a whole was sufficient to sustain a finding to the effect that the highway was established by a statutory user. G-. S. 1894, § 1832. Evidence was given on the trial tending to show that in 1881 the then town supervisors attempted to lay out 'the highway in question, but, as suggested, the record of their acts is defective; that, immediately following such attempt, the road was surveyed and opened, and has at all times since been known, and continuously used and traveled, as a public highway, and that public work has been expended thereon when necessary. This evidence was sharply in conflict with that given on behalf of the plaintiff, whose witnesses on the issue materially exceeded in number those of the defendants. The evidence on the part of the defendants was sufficient, if satisfactory to the trial court, to establish a public highway by a statutory user. The credibility of the witnesses and the weight of the evidence were matters for the trial court, and its decision is sustained by the evidence.

Judgment affirmed.