delivered the opinion of the court.
Plаintiffs in error were servants or employees of the Atchison, Topeka & Santa Fe Railroad Company; and while engaged in digging post holes on the line of the company’s right of way for the purpose of fencing the same, were arrested.
A criminal information was filed charging that they did “ unlawfully damage, interfere with, obstruct and injure and cause to be interfered with, obstructed and injured a certain road and highway in said county.” Trial and conviction followed, resulting in judgment of fine of $25.00 against each party convicted. Error is prosecuted from such judgment.
2d. In receiving the oral evidence of certain parties to establish the legal existence of a highway.
3d. In refusing to admit in evidence a cеrtain plat or map offered by the defendants.
4th and 5th. In refusing and giving instructions.
It will not be necessary to pass upon the first supposed error. The judgment must be reversed for failure of proof to establish the legal existence of a public road or highway at the point where the obstruction and interference are alleged to have occurred. It is impоssible to determine from the record whether the supposed highway existed by right of prescription, or by location by the county authorities by virtue of the statutes.
If by the former the proof signally failed, the proof showed an indefinite and indiscriminate use of a wide extent of country at the whim or caprice of the traveler, during the time necessary to establish a prescriptive right and various roads, either of which might have beеn claimed with equal propriety.
In Warren v. Town of Jacksonville,
In Fox v. Virgin et als., 11 Ill. Court of App. 513, it was distinctly declared that the publiс could acquire no right to a road over vacant and uninclosed land by use alоne for twenty years. See, also, Kyle v. Town of Logan,
It is not necessary for the purposes of this casе to determine what the evidence should be to establish the existence of a public highway, where the records were destroyed by fire. It is sufficient to say that evidence introduced from those who were supposed to have participated in lаying it out was too indefinite and uncertain to establish any legal formality requisite to its legаl existence.
It was shown by the evidence that the Atchison, Topeka & Santa Fe Company acquired its right of way and constructed its road some years previous to the alleged illegal obstruction by its employees; that аt the point in controversy its right of way had remained unfenced, and that the supposеd obstruction and interference occurred by the entry of the corporatiоn to erect a fence upon the line of its own territory.
It is very doubtful if such act would bring its еmployees within the purview of the statute relied upon.
In sec. 1156, 1 Mills’ Ann. Stat., Gen. St. sec. 689: “ A crime or misdemeanor consists in a violation of a public law in the commission of which thеre shall he an union or joint operation of act and intention or criminal negligеnce.” These conditions could hardly be supposed to exist -where parties legally inclosing its own property erected a fence in a wagon track used by the public, on a very illy defined way of travel on the prairie where there was amрle room for both, without greatly inconveniencing the public.
The intention of -the statute would seem to be to punish those who maliciously and intentionally obstructed a highway, fenced and defined, so as to obstruct and impede the public travel.
The conviction and judgment will be reversed and the cause remanded.
Reversed.