#### David S. Milligan, Appellant, v. Jesse Miller, Jr., et al., Appellees.

Appeals and errors—when -freehold involved. A freehold Is involved in an action of trespass quare clausum fregit to recover damages for the alleged wrongful conduct of highway commissioners in destroying a fence and otherwise damaging land for the purpose of opening up an alleged public highway over and across the land claimed to he owned by the plaintiff.

Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding.

Heard in this court at the May term, 1910.

Transferred to Supreme Court.

Opinion filed May 26, 1911.

George B. Rhoads and William H. Ragan, for appellant.

Richardson & Whitaker, for appellees.

Per Curiam.

The declaration in this case contains counts in trespass quare clausum fregit and in case, to recover damages for the alleged wrongful conduct of appellees as highway commissioners in destroying *534a fence and otherwise damaging certain land for the purpose of opening up an alleged public highway over and across said land, of which appellant claims to be the owner. The pleadings put in issue the ownership of the land and the existence of a public highway over and across the same, and the decision of the case necessarily involves a determination of such issues. A freehold is therefore involved and this court has no jurisdiction of this appeal. The case will be transferred to the Supreme Court and the clerk of this court is directed to transmit the transcript and all files in the case with the order of transfer to the clerk of the Supreme Court.

Transferred to Supreme Court.