¶1delivered the opinion of the court.
¶2Plaintiffs in error were indicted for obstructing a ¿public road.
¶3The grand jury made' a report to the court that the offense had been committed, and that it knew of no one who would agree or could be procured to be-come prosecutor, therefore the court ordered “that the Attorney-General -file an indictment officially, and prosecute the same officially without a prosecutor,” which was done and a conviction had.
¶4*470The facts-are, that certain citizens of Lincoln county petitioned the road commissioners to change a road and locate it upon the line between the lands of Catharine Tucker, Emiline Waggoner and T. C. Sullenger, on one side, and E. Ward on the other side.
¶5The commissioners, without knowing where that line was, without a survey, reported to the court that they had so changed and located the road. The report was confirmed and an overseer appointed, who undertook to establish the road from the statement of a chain carrier as to the line between the parties named.
¶6Instead of, pursuing the line, he no where touched it, but went through the heart of the farm of Ward^ and through his horse lot, and threw down the fences. Putting up the fences is the obstruction complained of. It was the duty of the commissioners to have gone upon the ground after giving the notice required by law, to have determined whether the change was a public necessity, and if so to have laid off the road in such manner as would have worked the least injury to land owners. The interest of the public or the wishes of petitioners should not have controlled altogether, that of the land owners must be consulted as well, and the just compensation provided for by the Constitution should have been fixed.
¶7The overseer and his hands .were liable to civil and criminal prosecution for the trespass thej committed. The defendants were not guilty of any offense in putting up the fences thrown down.
¶8It is evident, if the facts shown by the record are true, that the grand jury and court were imposed upon,. *471and that one J. W. Stiles, a witness for the .State, is father to tbe prosecution, which is malicious on his-part. • He was road commissioner when the litigation was had in the county court, and is proven, and in the main admits to have said, “it did not cost him any thing to law the Wards, that the State would do his lawing, and that he was going to make it cost the Wards as much as possible, that if .it had been any body else but E. C. Ward, he would not have run the road over his field.” It is clear to us, .that it was through his manipulations, in some way, the grand jury was induced to make ils report to the court that no one would prosecute-, and that an offense had been committed.
¶9He was carrying out his declared purpose of having the State to do ' his lawing and heaping costs upon the Wards. Through this prosecution he seeks to visit a malicious, wicked vengeance upon a neighbor. He was wholly unfit for the trust .confided to him. -It was he who directed the overseer to go and open the road, and to get a chain carrier to show him the line.
¶10The court refuséd to charge as requested: “If the commissioners, in their report, located the road on a line between Ward on one side, and Tucker, Wag-goner and Sullenger otn the other, and that line was a marked and notorious line, and their report was confirmed by the county court, the overseer of said road would be allowed only to open the road on said line, and if instead of opening ' the ■ road on said line, he went to another place forty or fifty yards down in Ward’s field and threw the fence down, the defendants *472would have a right to put the fence up at that point, as an order to open the road on said line would not be legal authority to open a road at another place.”
¶11The refusal was error. It was the duty of the overseer to work (he road as laid out, and he was not authorized to select another and different site or location, whatever may have been his reasons or motives.
¶12There is absolutely no evidence to support the verdict. The judgment is reversed and if the Atorney-•General thinks propel' a nolle prosequi will be entered.