Beall

This action was brought by the plaintiff as road commissioner for the purpose of abating a certain post and wire fence alleged to have been erected and main tained by the defendant on a public highway in Fresno county. The defendant admitted that he constructed and maintained the fence, but claimed that such fence was not upon a highway, but upon his own land.

Upon the issue thus made the court found in favor of plaintiff, and ordered the fence abated as a public nuisance, and judgment was accordingly entered. Defendant prosecutes this appeal from the judgment and from the order denying his motion for a new trial.

Defendant, no doubt in good faith, believed that he owned the land upon which he erected the fence. His counsel states in his brief that “the only issue in the case is the location of the section line between sections 23 and 26 in township 13, S. R 21.”

After carefully examining the record we are of the opinion that the issue in the case is as to the correct location of the boundaries upon the face of the earth according to the calls of a deed made by the then owner of the land to the county of Fresno for a right of way for a public highway, and whether or not the…