No. 7.

#### Rabberman v. Conrad.

The parties to this suit own adjoining lands with a public road running on the line between them. In this road, by consent of one of the commissioners of highways of the town in which it was situated, defendant in error dug a ditch close to his fence, and threw the dirt out into the road. Afterward plaintiff in error had his land sur*674veyed, and a part of defendant’s fence, and the greater portion of the ditch proved to be on plaintiff’s land. He thereupon brought this suit before a justice of the peace, and failing to recover there, appealed to the County Court of Madison county, where there was a trial by jury, and judgment again rendered for defendant for costs of suit, from which this appeal is prosecuted. It appears from the evidence that plaintiff objected to the digging of the ditch at the time it was being done. After the survey of plaintiff’s land, upon notice by the commissioners, defendant moved his fence back and filled up the ditch. This suit is not brought for an injury to plaintiff’s land. The claim made in the summons issued by the justice of the peace, is “ for obstructing the public road near his house.” It also appears from the transcript from the justice of the peace, that the claim or account filed before him was for the same cause. The only question here is, does plaintiff make such a case as entitles him in law to recover damages for an injury resulting to him from an obstruction of the road. The only evidence of damage to plaintiff is his own testimony, and he fixes the amount at but ten or fifteen dollars ; but whether he estimates the damages at that amount from'an injury resulting to him from the alleged obstruction in the public road, or from an injury to his land, it is impossible to tell from his evidence. Several witnesses testify that the ditch was no obstruction, and that it improved rather than injured the road. In this case substantial justice has been done.

Affirmed.

Opinion filed Nov. 24, 1886.

Opinion by

Wilkin, J.

Judge below, M. G. Dole. Attorneys, for appellant, Messrs. Burroughs & Warnock ; for appellee, Mr. Wm. P. Bradshaw.