majority">Gregory, J.

— This case is brought to this court by appeal by the State, after the acquittal of the defendants, on the questions reserved during the trial. The evidence is not made a part of the record.

D. E. Williamson, Attorney General, for the State.B. E. Rhoades, for appellees.

The court below, over the objection and exception of the prosecuting attorney, instructed the jury, among other things, as follows:

“ 8. Neither the intention to dedicate land to the public for the purpose of a street or public road, nor the use thereof by the public in that manner, can make it a highway, nor confer upon the public the right of a highway in that which will not answer the settled definition ,of a highway. Therefore • a way which communicates with a public road only at one end, being closed up at the other, is not susceptible of dedication to public use as a highway.”

“ 9. The road must not only be used as a public highway, but must also be worked, to constitute it a highway within the meaning of the act forbidding the obstruction of highways.”

It may be that the first of the foregoing instructions would be bad law applied to some state of facts, but in the absence of the testimony we are bound to presume in favor of the action of the court below. We think there might be a case where this instruction would not be erroneous. Without deciding on the rule recognized in Holdane v. The Trustees of the Village of Cold Spring, 23 Barb. 103, as an abstract proposition of law of universal application, we think in the case under consideration, as the record now stands, the court committed no error in giving the instruction.

.We think the other instruction was clearly bad law. The statute provides that “ upon prosecutions for obstructing a highway, it shall be sufficient to prove that it is used and worked as such.” 2 G. & H., § 66, p. 475. But this does not mean that there cannot be a highway without its being worked. In our prairies and barrens it often happens that our highways need no work.

Under the criminal code (2 G. & H., § 119, p. 420,) the judgment below must be affirmed, at the costs of the appellees.

The judgment is affirmed.

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