Huffman

There are several grounds elaborately presented in respondent’s brief upon one or more of which the judgment of the superior court might perhaps be affirmed, but these matters having been passed over in the opinion of the court it would be profitless to discuss them in a dissenting opinion, and, therefore, I shall make no attempt to do so. It would not be proper, however, to say that I dissent from the judgment without meeting and disposing of the question so presented, and I do not say so. I merely wish to express my dissent from the conclusion and reasoning of the court upon the single point decided in its opinion.

As one of those who participated in the decision of Gloster v. Wade, 78 Cal. 407—here overruled— I am perfectly willing to concede that the provisions of the constitution are of higher authority than that decision, or any decision, but I am unable to perceive the applica *35 tion of the doctrine. The provision of the constitution alluded to prescribes the method of amending statutes, and the entire sum and substance of the decisions cited upon its construction is that when a section of the statute is amended, as the constitution directs, the old section ceases to…

The plaintiff is the owner of a tract of land in Merced county, lying to the east of the Snelling road, and bounding upon Bear creek at the south. The defendant was the road overseer of road district Ho. 1 of Merced county, and on the 17th of January, 1889, destroyed and removed about 60 feet of a fence which extended from Bear creek northerly between the Snelling road and the plaintiff’s land, under the claim that it was an obstruction to a public road along the northerly bank of Bear creek. The plaintiff brought this action for damages for the alleged trespass, and to enjoin the defendant from further interfering with the fence. Judgment was rendered in his favor, and the defendant has appealed.

The title of the plaintiff to the land was not questioned at the trial, and the finding of the court that the land had been, for a period of more than ten years prior to January, 1889, inclosed along the Snelling road with a good and substantial fence is not excepted to. The defendant, however, sought to show that the public had traveled over this strip of land and used the same as a public highway for a continuous period of more than five years since the 10th of January, 1873, and…