concurrence">

CONCURRING OPINION.

TRIMBLE, J. —

I concur in the foregoing opinion, but inasmuch as appellant seems to have been induced to take the position he does by my opinion in Board ex rel. v. McPherson, 172 Mo. App. 369, it may not be amiss to say a few words in regard thereto. In that case the sole question was whether the court had erred in taking the case from the jury, and it was stated that if a single fact involved were in dispute, *138then it was error to direct the jury to return a particular verdict. But since there was no dispute over the facts showing that the road had been dedicated in pais by the owner up to the hedge as the boundary line of the road, and that the ground on which the trespass was charged to have been committed was on the strip so dedicated, there was no issue to be submitted.

Attention was called to the fact that the case was unlike Moore v. Hawk, 57 Mo. App. 495, because in that case there was unquestionably no dedication by the owner up to the hedge but only to a distance of fifteen feet from the center of the highway in order to give one-half of a thirty foot road, while in the McPhearson case everything in the owner’s conduct went to show that he dedicated np to the hedge and nothing to show he had any intention of dedicating a lesser strip; or, if the mere existence of a rail fence outside of the hedge could be regarded as showing a dedication of a lesser strip, then the admission of the plaintiff that the land entered upon by the defendant was still outside such fence left no issue for the jury to determine. The opinion, however, on page 375, in saying that the case was unlike Moore v. Hawk, incautiously and inaccurately said: “If that were the case here, if the former landowner had by any act indicated an intention to dedicate a strip of lesser extent than to the hedge, then the land south of such indicated line would belong to relator even though unfenced for many years, since, in the absence of actual user, the public would obtain no lights beyond the line first established.” What was intended to be said was that it was undisputed or conclusively shown that the landowner had dedicated a lesser strip, then the land in excess thereof would, in the absence of user by the public, belong to the owner even though unfenced for many years. But if the width of the strip dedicated was in dispute and there were acts of the owner tending to show the dedication of a lesser strip then the question must be left to the *139jury to say whether the dedication extended far enough to place the ground in question inside or outside of the roadway.

In the case now written by Judge Johnson it was left to the court sitting as a jury. The court found that the land was dedicated as a road clear up to the hedge notwithstanding the State’s admission that there had been at one time a fence outside the hedge. The evidence being ample to sustain such a finding, the appellate court will not disturb it.

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