Defendant was tried upon an information drawn under Section 2726 of the Political Code, charging him
The questions presented upon this appeal may be disposed of in a few words. The State contends that a legal highway was proved to have been laid out and established by virtue of proceedings conducted in compliance with the provisions of Sections 1809-1822, Fifth Div., Compiled Statutes of 1887. The court below held that there had been an omission to observe the requirements of these statutes with respect to the giving of certain notices necessary to the jurisdiction of the Board of Comissioners. The order opening the road for travel was correct in form, but we agree with the learned judge who tried the case that, in the steps taken between the filing of the petition and the final order, there was a material departure from the mandatory provisions of section 1810, which requires notice of the place, as well as the time, where the viewers will meet to view and mark out the road, to be posted, and that proof thereof shall be made by affidavit. At the tame of the trial there was not on file an affidavit showing that notice of the place of meeting was given, nor was the proof which should have been made by affidavit supplied by the production of oral testimony or otherwise, if evidence other than an affidavit might properly be received. (See Carron v. Clark, 14 Mont 301, 36 Pac. 178.) The notice by the viewers thatthey will meet at a certain time and place is a sort of warning, in the nature of a summons, the office of which is to advise all persons interested of the matter in hand, to the end that they may appear before, and be heard by, the viewers.
It is further contended that the evidence made out a prima facie case of a highway by prescription. The law, doubtless, is that a highway may be established by prescription as well
Some suggestion is made that the road is a highway by dedication. Suffice it to say that the elements necessary to prove a dedication of the way in question were not proved. The order appealed from is affirmed.
Affirmed.