Phelan

Action that plaintiff be adjudged entitled to the free use of a certain road; that the gate erected across the same by defendant be adjudged an obstruction, and that he be compelled to remove the same and be restrained from placing or maintaining across said road a gate or other obstruction; also for damages. Certain questions were submitted to a jury, the answers to which the court adopted as findings of fact and gave judgment for plaintiff. The court also found that the judgment pleaded by defendant was not a bar to the action. Defendant appeals from the judgment and from an order denying his motion for a new trial.

The evidence tended to show that in 1873 defendant purchased from Owen McNulty, plaintiff’s father, one hundred and sixty acres of land which was situated between other land where McNulty resided and the public highway. A private road ran from McNulty’s residence to the highway which was fenced on one side. When defendant purchased the land Mc-Nulty was maintaining a gate across the private road where it connected with the public highway, and defendant continued to maintain the gate and McNulty used it for five or six years thereafter. About 1878 or 1879, the…