Appellant sued to recover damages for an alleged trespass on land owned by him. There was a directed verdict against him, and he has appealed.
Of the parties made defendant in the suit one was the owner of an adjoining tract of land west of appellant’s land, and the others were the road overseer and certain road hands in the district where the land was situated.
The facts developed at the trial were substantially as follows: Appellant and others petitioned the county court to establish a certain road described in the petition. A part of the course of the proposed road as described in the petition was “thence south between T. C. Dillard and A. N. McNairn (appellant).” The court granted the prayer of the petition, and in the order of the court the road is described in the language employed in the petition. The order directed that a road twenty feet wide should be opened up, and that it be a second-class road. Appellant proved ownership and possession of the land in question for a period of more than forty years, during all of which time there had been a division fence between his land and that of Dillard, and further that about twenty years ago appellant built a new fence on his own land about fifteen feet east of the line between the two farms, and left the division fence standing, thus opening up a private passage-way for his own use over his own land. That shortly after the order of the court had been made the road overseer, with the road hands, entered upon the land, and tore down the private fence and moved it four rods further over on appellant’s land, and, in doing so, destroyed portions of the fence. It was alleged that this was done “for the further purpose of delivering possession of said strip so cut off to the defendant Dillard,” but no testimony was offered in support of that allegation.
The effect of this action by the overseer was to vacate a road, not twenty feet wide, as specified in the ordei’ of the court, but one four rods wide, and, instead of laying off the road between the two farms, the overseer commenced to lay it off fifteen feet east of the line between the two tracts of land.
We construe the order of the court establishing the road between the two farms to mean that the line between the farms should be the center of the road, yet the overseer commenced fifteen feet east of that line to lay out the road. The order of the court, even if valid, affords no justification for that action.
Appellant insists, however, that the order is void and affords no protection, whatever the jury might find the facts to be in regard to the line between the two tracts of land. No testimony was offered by appellees at the trial below.
This is a suit in trespass, and, as has been said, the court’s order-was made in response to, and corresponds with, appellant’s petition, and he can not, therefore, in, this action question the validity of the order. He has’ consented; therefore he is not damaged by establishing the road prayed for in his petition. But this consent to establish a particular road would not justify the overseer in establishing a different one.
No case is made against Dillard, nor is there a case against the road hands. These hands were not privately ' employed, but were present in response to the summons from the overseer,, which required their attendance. It would have been a violation of the law on their part had they failed to obey the summons; and their good faith is not questioned.
The judgment of the court below will be reversed as to the overseer, and affirmed as to all others.