Leverone

This is an appeal by defendant on the judgment-roll from a judgment decreeing that a road traversing the land of defendant’s testator for about three eighths of a mile, running from plaintiff’s land on the north to a public highway known as Hildreth road on the south, is a public highway, and that plaintiff also has a private right of way there-over, and enjoining defendant from maintaining any fence or other obstruction thereon, and awarding plaintiff two hundred and eighty dollars damages caused by an obstruction maintained thereon by defendant’s testator, and by her after his death.

The complaint contained two counts, the first being based on the theory that the road was a public highway, and that a fence maintained by defendant’s testator and herself acros.; the same constituted a public nuisance causing special injury to plaintiff, and the second being based on the theory that the road is a private road over which plaintiff, prior to the construction and maintenance of said fence, had acquired • by adverse use a right of way from the Hildreth road to his lands.

Defendant demurred to each count on the general ground of want of facts, and the further ground of uncertainty, in…