City of Kansas v. Burke

The opinion of the court was delivered by

Porter, J.:

In an application for a rehearing much stress is laid upon the claim that appellants were entitled to a jury trial, and that injunction is not the proper remedy to prevent the obstruction of a public highway except where the existence of the highway is conceded. It is argued that in such an action, whether the plaintiff seeks to show the establishment of a public highway by condemnation, prescription or dedication, the mere filing of an answer setting up title in the defendant and denying the existence of a highway entitles the defendant to…