¶1 As we gather from the opinion of the Court of Appeals, the point at which the nails were placed, while a part of the Montgomery and Birmingham Highway, was undergoing construction or repair, and, at the time, had not been turned over to the proper authorities and open to the public. *390 This being the case, the question as to whether or not the road, at this point, was a public highway was a direct issue in ^he case, and testimony that it was at that time assumed that it had been surrendered to the proper authorities and opened to the public and which the opinion of the Court of Appeals states had not been done. This being the ease, the Court of Appeals was. justified in applying the rule laid down in the case of C. of G. Ry. Co. v. Faulkner, 217 Ala. 82, 114 So. 686, and in not following the case of McCullar v. Williams, 217 Ala. 278, 116 So. 137.
¶2 Writ denied.