Hibberd

This is an action to recover damages for trespasses alleged to have been committed by the defendant in entering upon the land of the plaintiff, riding over and across the same; and cutting down a gate thereon. The defense set up in the answer and relied upon at the trial was that the gate cut down was upon a road which had become a public highway by dedication and user by the public for more than fifteen years. The complaint alleged that the plaintiff had been damaged by the trespasses complained of in the sum of $325, but the court found that she was damaged by the cutting of the gate only, and in the sum of $5, for which sum. with costs, judgment was given in her favor. The defendant moved for a new trial, which was denied, and has appealed from the judgment and order.

The principal question presented for decision is as to whether or not there was a public highway extending across plaintiff’s land, and over which the defendant had a right to travel. It is not pretended that the road was ever laid out or established as a highway under the provisions of the code, and the only question is, Had it been dedicated by the owners of the land, and accepted and used by the public, so as…