OLIVER v. LOFTIN, 4 Ala. 240

ORMOND, J. The motion for instructions to the jury appears to be founded on the assumption that no road can be legally established unless the order appointing commissioners to review the road, the report made by them indicating its route, and the final order establishing it were of record in the County Court.

It is not necessary now to determine whether, when a road has been established by the Commissioners Court from one point to another, the route of the road, through the intermediate space, would not be sufficiently shown by proof of where the road actually ran, its user by the public, and the acquiesence in such use by the owners of the land lying in its route, because, in our opinion, the act of 23d December, 1836, [Meek’s Sup, 310,] was intended to foreclose this inquiry, and to supply the precise difficulty supposed to exist in this case. The first

section declares, “that any order of the Commissioners’ Court, by which a road is recognized as a public road shall in all cases bo prima facie evidence of that factthat is that such road has been established as a public road according to law. The design of such law was clearly to legalize such roads as had been established by the Commissioners’ Court in an informal manner, or where the evidence of such establishment could not be produced.

Therefore any action of the Court upon the road, as a public road, by making an order in referen.. \»'\h is made prima facie evidence that it is a public road, established by law. In this case the road was established by the County Court, and parol testimony is certainly admissible to prove its location, by shewing where it actually ran. The charge given is unexceptionable. The act just referred to,

section five, authorizes any one to change the route of the road “ to straiten it through enclosures or to make it more convenient to the publicfrom this license it will follow, that if a change is made by any one in the route of the road, and acquiesced in by the public, as appears to have been the fact in this case as regards the first alteration, the overseer of the road could not abate it as a nuisance.

But when the change was recent, and not justified for the purpose of straitening the road or making it more convenient for the public, any one might abate it as a nuisance, and it was the duty,of the overseer of of the road to remove such obstruction, and restore the road to its proper condition. Let the judgment be affirmed.