Covell

Judgment was entered in favor of the plaintiffs in an action prosecuted against the defendant to compel him to remove or set back a certain fence alleged to be an encroachment upon the public highway now known as “Ward Avenue”. From this judgment and the penalties attendant thereon the defendant appeals.

The contention principally relied upon in this appeal by the defendant is that the testimony fails to show any encroachment by the defendant’s fences upon any part of the road as originally laid out and established. A review of the testimony upon which the plaintiffs rely, to wit, a survey made by a deputy county surveyor by the name of McMath, as hereinafter set out, we think establishes the contention of the defendant beyond controversy.

The record shows that in 1872 the county surveyor of the county of Stanislaus by the name of G. B. Douglass, surveyed and laid out the proposed road; that this road as surveyed and laid out by Douglass was approved by the board of supervisors and was created a public highway with a width of 33 feet on each side of a certain range line described in the survey. The record of this survey is set out in the transcript as it appears in the clerk’s…