Compton

—The plaintiff, as one of the supervisors of Biverside county and road commissioner of his supervisorial district, brought this action against the defendants for the obstruction of an alleged .public highway within his road district. The action is brought under the provisions of the Political Code: “If any highway duly laid out or erected is encroached upon by fences, buildings, or otherwise, the road overseer of the district may, orally or in writing, require the encroachment to be removed from the highway.” (Pol. Code, sec. 2731.) “If the encroachment is denied, and the owner, occupant,, or person controlling the matter or thing charged with being an encroachment refuses to remove or permit the removal thereof, the road overseer must commence, in the proper court, an action to abate 'the same as a nuisance; and if he recovers-judgment he may, in addition to having the same abated, recover ten dollars for every day such nuisance remained after-notice, also costs in said action.” (Pol. Code, sec. 2734.) Defendants in their answer did not deny the encroachment—that is, erecting the fence alleged to be on the highway—but denied that the alleged highway was a public highway, or ever…