Clarke

This action was brought to quiet plaintiff’s title to a lot in the town of Auburn, 148 feet 10 inches long and 40 feet wide, being on the south side of Railroad Street, and fronting thereon 40 feet.

The case was tried before the court, findings filed, and judgment entered thereon in favor of plaintiff. Defendant brings this appeal from the judgment and from an order denying his motion for a new trial.

In his answer, the defendant—among many other defenses —alleges that he, and those claiming under him, have for more than eight years last past traveled with vehicles and on foot over a certain right of way across the lot, claiming the right to travel the same, adversely to plaintiff; that he has never, during said time, been interrupted in the use of said right of way, and that plaintiff, during all of said time, had full knowledge of the said travel.

As the case seems to have been tried upon the theory that the above allegations state facts sufficient to show a right of way by prescription, we will so treat them here. The other defenses set forth in the answer seem to be abandoned, and it is practically conceded that the title is in plaintiff, unless the evidence is sufficient…