¶1Appellant was the owner of forty acres of land adjoining the section line on the north. A legal highway, running east and west, *48had been laid out and traveled for many years, supposedly upon the section line. Appellant had constructed a fence on his own land along the south side of the road, as traveled. Respondent was an assistant road inspector, and claimed that the fence was within the limits of the highway, and directed appellant to remove it. Upon his refusal to do so, respondent, acting on behalf of the public, took the fence down, and this action ivas brought to recover damages for the trespass. At the close of appellant’s .case, the court dismissed the action, upon the ground that no' evidence had been introduced to sustain the allegations of the complaint; and the only question presented here is the sufficiency of the evidence to make oút a prima facie case for appellant.
¶2Although appellant failed to prove the exact location of his fence with respect to the section line, and to- the road as traveled, the evidence fairly shows that the fence was located upon appellant’s land, and a prima facie case was made out. It was admitted by respondent, in his answer, that he took down and removed the fence; and he justified his conduct upon the ground that the fence was within the limits of a public highway and that he was acting as a public official. In our opinion, the burden was upon respondent to prove what he alleged, and, having failed to do so, it was error for the trial court to dismiss the action at the close of appellant’s case.
¶3Reversed and new trial granted.