
    No. 12,459.
    Whetton et al. v. Clayton et al.
    
      Highway.—Proceeding to Vacate.—Evidence.—In a proceeding to vacate a public highway it is not error to exclude testimony to the effect that .certain individuals had offered to construct a foot-bridge over a stream which crossed such highway.
    
      Same.—Best Evidence.—In such proceeding an order of vacation theretofore made by the board of commissioners can not be proved by parol, in the absence of any reason shown for the attempted resort to secondary evidence.
    Supreme Court.—Practice.-—-Instructions.—Motion for New Trial.—Record,.— Instructions can not be made part of the record by copying them into the motion for a new trial.
    From the Elkhart Circuit Court.
    
      A. S. Zook, D. Zook and W. H. H. Dennis, for appellants.
    
      J. II. Baker, F. E. Baker and 8. J. North, for appellees.
   Elliott, J.

This is an appeal from an order refusing to vacate a public way.

Filed June 28, 1887.

It is contended by the appellants that the trial court erred in refusing to permit them to prove that private persons had offered to construct a foot-bridge across a stream which crosses the highway. There was no error in this. A highway is a very different thing from a mere private way built, or maintained by private individuals. The public and individuals have very different rights respecting it from those which they have in a private way. It is not proper to prove what individuals will do, where the question is whether a public way shall be laid out, or whether one already opened shall be maintained.

There was no error in refusing to permit the appellants to-prove by parol when an order of vacation was made. That could only be proved by the record. There may be cases where parol evidence is admissible, but this is not one of them, for there was no reason shown, or attempted to be shown, justifying a resort to secondary evidence.

We think that there were such pleadings as entitled the appellees to have the evidence given by them considered by the jury, and that there was no error in overruling the motion to exclude it.

Instructions can not be made part of the record by copying them into the motion for a new trial.

Judgment affirmed.  