Chappell v. Winslow

Defendants assign as error the failure of the judge to nonsuit plaintiffs’ action. They contend that there is a material and fatal variance between the allegations and proof in that plaintiffs alleged, and sought to enj oin, damage which would result if defendants widened and deepened the north-south highway ditch along the west edge of the Highway; whereas their evidence, and subsequent events, showed that they were attempting to prevent defendants from connecting east-west ditches with the highway ditch. Defendants further contend that they, with the consent of the plaintiffs, were…