No. 127 October Term 1891, Sup. Ct.; court below, No. 54 February Term 1891, Q. S.

On February 5, 1891, the grand jury returned as a true bill an indictment charging J. Charles Dicken with maintaining a public nuisance. The defendant pleaded not guilty.

At the trial, on February 6, 1891, the commonwealth introduced testimony tending to show that in 1890, the defendant erected a fence and afterwards maintained the same, within the lines of a public highway leading from Greensburg to Latrobe. It was made to appear that, to No. 8 November Term 1875, Q. S., proceedings were had to change or straighten the highway in controversy; that, though the report of the viewers in favor of the change was confirmed, and an order to open issued and executed, yet the width of the road as changed had never been fixed.

The defendant testified that his wife was the owner of the farm, and as such had erected and maintained the fence; and proposed to state, further, that “ when the viewers came upon the ground to vacate, alter, and change the public road, in 1875, under the order of court issued to them for that purpose, in my presence, my father, Jesse Dicken, the owner of the tract of land upon one side, agreed to release ten feet of his ground and did release ten feet; to be followed by evidence showing that the road was laid out and opened in conformity therewith, by the building of line fences upon each side by the owners of the respective properties, designating the width of the road, to wit, thirty feet.”

Objected to, for the reasons: (1) that the viewers had no power to fix the width of the road; (2) because they did not fix the width of the road; (3) because the court never fixed the width of this road, and it could not be fixed by agreement of the landowners on either side. The court having failed in the order of confirmation to fix the width of the road, the order of confirmation was a nullity, and the road never could be opened because no width was ever fixed. It is further objected to,'because, if the question be competent at all, the record itself is the best evidence ; parol testimony of the witness is incompetent.

By the court: Objection sustained.1

At the close of the testimony, Raybubn, P. J. 33d district, instructed the jury, answering certain points presented as follows :

In behalf of the commonwealth, the court is respectfully asked to charge the jury as follows:

1. That the width of a road is an essential ingredient of it, and no proceeding to lay out a public road is complete, until the width is fixed by a competent tribunal. The record at No. 8 November Term 1875, shows that the width of this road was never fixed by the court; therefore, the proceeding was nugatory, it never having been completed.

Answer: This point is affirmed.

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