Smithers

This action was for an injunction restraining the defendants from entering upon the plaintiff’s premises, and taking down or removing his gates, or in any manner interfering with his premises, and for damages for acts of that kind already done. The case was tried before the court without a jury; the plaintiff had judgment for an injunction as prayed for, and damages in the nominal sum of one dollar and costs. The defendants appeal from the judgment, and an order denying a new trial.

The contest arose over the right asserted by one of the defendants, Fitch, a road-overseer or road-master, acting under the authority and by the direction of Gosling, as a member of the board of supervisors of Napa County, to remove the gates of the_ plaintiff from what was alleged to be a public highway, and which right, so claimed, had already been twice exercised by the road-overseer.

*155 The defendants asserted that, some time in the month of August, 1863, there was laid out and constructed over the lands now owned by the plaintiff a public road and highway, which, for more than twenty years next ensuing from and after the year above mentioned, was used as such by the public, with the…