Hughes

In the complaint, plaintiff avers that he is the owner and in possession of a large tract of land, valuable mainly for pasturage, for which purpose he has it inclosed by a substantial fence; that “ during the last two months ” defendant has torn down and destroyed said fence at various points, and threatens to continue to do so, to plaintiff’s damage in the sum. of five thousand dollars. It is further averred that defendant is insolvent, and that if he continues to destroy and keep open said fence, he will cause plaintiff irreparable damage. The prayer is for judgment for five thousand dollars damage, and an injunction to restrain defendant from continuing said acts.

The answer of defendant contains a denial of the averments of the complaint, and for a separate defense avers that there are, and for more than twenty-five years have been, certain public roads over and through said land; that recently plaintiff had built fences across said public roads; that defendant is road-overseer of the district, and that in discharge of his duties as such he had removed the said fences where they crossed and ob *388 structed said roads, but had not interfered with said fences at any other…