
    Commonwealth, Appellant, v. Royce.
    Criminal law — Nuisance—Fence in street.
    
    An indictment for obstructing a' street by a fence cannot be sustained where it appears that the fence was not upon the opened and traveled part of the street, nor in that portion which had been actually accepted by the public authorities.
    Argued Oct. 5, 1892.
    Appeal, No. 163, Oct. T., 1892, by plaintiff, from judgment of Q. S. Clarion Co., Nov. T., 1891, No. 8, on verdict for defendants, Mary A. Royce and C. N. Royce.
    Before Paxson, C. J., Sterrett, Williams, McCollum, Mitchell and Heydrick, JJ.
    Indictment for obstructing a street by a fence.
    At the trial, before Baer, P. J., there was evidence to the effect that in 1866 John M. Cunningham laid out a large part of the borough of East Brady in town lots, streets and alleys. Fourth street upon which the fence stood was sixty feet wide, but the fence was not in the opened or traveled part of the street. The deeds for this and other lots on this street sold by Cunningham called for Fourth street as one of the boundaries. The borough employed an engineer to level or grade the street, required property owners to build sidewalks and in one instance put down a sidewalk in default of the owner. The minutes of the borough council showing these facts were given in evidence. The court held that the evidence of dedication was insufficient — that to create a public street in a borough by less than twenty-one years’ use by the public, some action by the borough was necessary, such as an ordinance or the filing of a draft or map. A verdict was accordingly directed for defendant.
    November 7, 1892:
    Verdict and judgment for defendant. Plaintiff appealed.
    
      Hrrors assigned were, among others, (1 — 7) this direction, quoting it.
    
      B. J. Reid, with him Gr. Gr. Sloan, district attorney, F. J. Maffett, Frank R. Hindman and J. A. F. Hoy, for appellant.
    
      John W. Reed, with him Wm. L. Corbett, Bon C. Corbett, and Harry R. Wilson, for appellees,
    cited, among other cases, Com. v. Marshall, 137 Pa. 170.
   Per Curiam,

We are of opinion that the court below was right in directing a verdict for the defendants. Even if we concede there was sufficient evidence of the acceptance of the street by the public authorities of the borough of East Brady, such acceptance was merely of the street as it had been actually opened and used. The evidence shows that the fence complained of was not upon the opened and traveled part of the highway. It follows that it was not a public nuisance.

Judgment affirmed.  