Tarpey

This action was instituted for the purpose of preventing by injunction the defendant’s threatened continuing trespass upon the lands of the plaintiff. The defendant in his original answer denied that he had trespassed upon the lands of plaintiff, or that he had threatened to commit a continuing trespass or any trespass upon such lands; and as a special defense to the action pleaded that the strip of land in controversy was a public highway free and open to the use of the defendant and the public in general..

In accordance with the issue thus raised the case was tried upon the theory that such strip of land became a public highway by the presumptive dedication of the plaintiff and the implied acceptance of the public.

After the submission of the cause but before a decision thereon was rendered the defendant requested permission to amend his answer “so that the allegations and denials thereof may correspond with the proofs.” This request, upon due notice to the plaintiff of its making, was granted by the lower court. Thereupon the defendant filed an amended answer, which admitted the plaintiff’s ownership of the land; admitted that the defendant had, as was charged in the…