
    Bryans v. Almand.
    While the municipal authorities of a city or town may, on complaint of a citizen, cause an.obstruction to be removed from any public street in actual use by the public, yet where a street exists only in the plan of such city or town, and has not been actually opened, worked by the municipal authorities and used by the public, but on the contrary, has been in private occupation for thirty or forty years, this mode of procedure is not available. Parsons et al. v. Trustees Atlanta University, 44 Ga. 529.
    July 13, 1891.
    Municipal corporations. Streets. Before Judge Boynton. Butts superior court. August term, 1890.
   Judgment reversed.

Almand, by his petition to the mayor and council of the town of Jackson, asked that Bryans be compelled to remove obstructions from a certain territory in the town, which Almand claimed was a public street. The decision of the mayor and council was in favor of Almand; and Bryans by certiorari alleged that the decision was contrary to the evidence and without evidence to support it, and that error was committed in admitting certain evidence of one McCord, and in admitting a plat of the town. McCord testified that he had knowu tlio alleged street since 1828 or 1824; that he was well acquainted with all the streets in the town and had been since 1824; that he had always recognized the strip of land in dispute as a street; that there was afootway through it which he had travelled, and he had seen others travel over the street;, that a stage line once cleared out some of the street and built stables therein; and that his recollection was, that this stage company was allowed to build the stables in the street by order of the town council. The testimony as to the order was objected to by Bryans, on the ground that it was hearsay, and that no attempt was made to introduce the records of the council or account for their absence. Almand introduced a plat of the town, in which a street was laid off in the disputed territory, and also introduced the county surveyor, who testified that he was employed by the town council for the purpose of locating original streets in the town and making such new streets as the town council might desire; that he made the plat; that lie laid off a forty foot street in the territory uow in dispute, and one Byars, who was then the owner of the land on which the street was located, made no objection to its being laid out as set forth in the plat. Almand also introduced Byars, who testified that he was present when the street was located and-made no objection to it. The plat purported to have been made in the year 1884-. Under this proof the plat was admitted in evidence over objection that it was irrelevant.

Wright & Beck and Hall & Hammond, for plaintiff in error.

No appearance contra.

Several witnesses gave testimony, in substance, that no street had ever actually been opened or used through the land, and that it had been owned, enclosed, cultivated and claimed by private persons since it was cleared, forty or more years ago.  