#### Town of Canteen, Appellant, v. Fred Weber and Martha Weber, Appellees.

(Not to be reported in full.)

Appeal from the City Court of Bast St. Louis; the Hon. W. M. Vandeventee, Judge, presiding. Heard in this court at the March term, 1914.

Reversed and remanded.

Opinion filed July 28, 1914.

Statement of the Case.

Action by Town of Canteen against Fred Weber and Martha Weber to recover a penalty under section 71, ch. 121, Hurd’s B. S., J. & A. 9700, for the obstruction of a highway. The charge is that the defendants built a fence in the middle of the road covering one-half of the road and extending about three hundred feet parallel with the road, and that the defendants had been verbally notified, and the defendant Fred Weber notified in writing, to remove the obstruction. It further appeared that the defendants had promised to remove the obstruction in ten days, but that they had failed to do so.

The case was tried before a jury and a verdict was returned finding the defendants not guilty. To reverse the judgment, plaintiff appeals.

*406Abstract of the Decision.

1. Roads and bbidges, § 15*—period of user to establish highway. A period of user for fifteen years is all that is required under section 1, eh. 121, Hurd’s R. S., J. & A. 1f 9628, to establish a public highway.

2. Roads and bbidges, § 11*—sufficiency of instruction as to establishment of public highway. An instruction which tells the jury that if a road is used and traveled by the public as a highway and is recognized and kept in repair as such by the highway commissioners, proof of such facts furnish a presumption liable to be rebutted that such road is a public highway, held subject to the objection that it does not state the period for which the road must be used to constitute it a public highway.

3. Costs, § 26*—when town not liable for costs. A judgment against a town for costs is improper in a suit by it to recover a penalty for the obstruction of a public highway.

N. C. Lyrla, for appellant.

W. E. Knowles, for appellees.

Mr. Justice McBride

delivered the opinion of the court.