
    RUST v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    1.- Highways (§ 17)' — Establishment by ■ Peescbiption— Sheficiency of ‘Evidence. _
    _ In a prosecution for obstructing a public road, evidence for the state that overseers had been appointed for the road for every year from 1878 down to the, trial would have supported a finding that the state had acquired title by limitation, where the road did not coincide with the road as laid out by the commissioners’ court.
    [Ed. Note. — Eor other cases, see Highways, Cent. Dig. § 24; Dec. Dig. § 17.]
    
      '2. Highways (§ 7) — Establishment by Pee-scbiption — Permissive Use.
    Where, at the time a road was laid out by a jury of view on the line of a survey, there was an old road crossing such survey diagonally, and the owner of such survey, who was a member of the jury, told the other members that the public might continue to use the old road until he chose to fence the survey, the use of the old road by the public was not adverse to his title.
    [Ed. Note. — Eor other cases, see Highways, Cent. Dig. §§ 10, 12-14, 16, 18; Dec. Dig. § 7.]
    3. Highways (§ 164) — Obstruction — Criminal Offenses — Questions for Jury.
    In a prosecution for obstructing a public road, evidence that accused went to the county commissioner of the precinct and inquired about the boundaries of the road and was authorized by the county commissioner to fence the road was sufficient to present an issue of fact for the jury whether accused’s act was willful, which should have been submitted by a proper instruction, although there was evidence for the state -that he was not authorized to fence 'the road by the county commissioner, since if the jury believed the evidence first referred to they could hardly have found that he acted with evil intent and legal malice.
    [Ed. Note. — For other cases, see Highways, .Cent. Dig. §§ 447-455; Dec. Dig: § 164.]
    4. Evidence (§' 386) — Parol Evidence — Establishment of Highway.
    The report of a jury of view appointed to lay out a road and the order of commissioners’ court- adopting such report could not be varied by the testimony of .a juror tha't the report did not correctly describe the highway as in fact surveyed and adopted by the jury.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1678-1697; Dec. Dig. § 386.]
    Appeal from Red River County Court; George Morrison, Judge. " '
    B. A. Rust was convicted of obstructing a public highway, and he appeals.
    Reversed and remanded.
    Chambers & Black, of Clarksville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted for obstructing a public road, and from such conviction prosecutes this appeal.

The report of the jury of view and the order of the commissioners’ court, adopted in 1898, show that the Clarksville and Stephenson ferry.-road would run with the north and east line of the N. G. Benton survey. The' road, as originally used and worked from 1878 down to the present time, ran diagonally across this survey. If the state has title to this road as used, it is by limitation- and hot by order of condemnation nor brder of the commissioners’ court. We think the evidence offered in behalf of the state would disclose title, by limitation, as it- is shown that overseers have been appointed for this road for every year from 1878 down to the time of this trial; but, while the evidence offered in behalf of the state would support such a finding, yet the evidence offered in behalf of appellant would tend to show that an old road was on the land as it now runs prior to the time a road was laid out-by the jury of view; that the owner of this survey was a member of the jury of view; and, while the lines of the road as run out called for the north and east lines, yet that Mr. Upchurch told the other members of the jury of view that the public might continue to use the road running diagonally across the survey until he should choose to fence the' survey. If this fact be true, the use of the road would not be adverse to Mr. Upchurch’s title to the land, and this issue should have been submitted to the jury. Farr v. State, 55 Tex. Cr. R. 271, 116 S. W. 570.

Again, appellant and Jim Law testify that they went to the county commissioner of that precinct and asked him about the boundaries of this road, stating that they understood it in fact called for the lines of the survey, and they desired to know if that were true; that the county commissioner told them he did not know but would examine the record and see; that he reported to them later and told them he could find no record, and the 'county commissioner then authorized them to fence the road on the line, which they did do. The county commissioner denies authorizing them to do so, but this presented an issue of fact to be determined by the jury, and as this act is charged to have been “willfully” done, taking the testimony of appellant and Law as true, they would have hardly also found that the act was done with evil intent and with legal malice.- While, as stated before, •the evidence offered-in behalf of the state was ample to authorize the jury to find that the county commissioner made no such statement-to appellant, and there was ample evidence to sustain that the act was willfully done," yet such testimony raised an issue of fact. A special charge was requested in regard -thereto, and the court erred in not properly submitting that issue to the jury.

Again, after the state had introduced in evidence the petition for the road, the report of the jury of view, and the order of the commissioners’ court adopting the report, it permitted one member of the jury to testify that the report was not correct in calling for the north and east lines of the survey, but that in fact they surveyed and adopted the road diagonally across the survey as the road at present runs. • The report of the jury of view which was sworn to in 1898 and adopted by an order of the commissioners’ court could not be varied by parol testimony.

There are a number of other matters presented by the record, but the above three bills are the only bills that present error, but on account of them the judgment is reversed, and the cause is remanded.  