Kenner v. Cousin

O’NIELL, C. J.

The plaintiff has appealed from a judgment rejecting her demand for damages for an alleged, trespass upon her land. The case presents only questions of fact. The district court found that there was no wanton invasion of the plaintiff’s premises nor damage done. The defendants went upon the premises to make a survey, in obedience of an order of court rendered in a suit then pending; one of the three defendants being the surveyor appointed by the court, and the two other defendants being parties to or interested in the suit. They were accompanied by a deputy sheriff, because the plaintiff had forbidden them to enter upon her land, which was absolutely necessary in order to obey the orders of the court.

The learned counsel for appellant argues that the defendants’ plea of justification, based upon the court’s order for a survey, should not prevail, because it was not urged in the answer to the suit; the answer being merely a denial of each allegation of the petition. That is a matter of little or no importance, because the plaintiff had to prove the' alleged unlawful invasion of her premises, and, in making the proof it came to light that the invasion was not unlawful, but, on the contrary, warranted by the court’s order for a survey.

The judgment is affirmed.