Opinion by
Head, J.,The defendants were the supervisors of. Washington Township in Greene County. They were tried on a bill of indictment charging them with maintaining and continuing a public and.common nuisance in that they refused and neglected to open and make reasonably passable a certain public highway in their township. The verdict of thé jury acquitted the defendants, but the *543Commonwealth, alleging that such verdict resulted from erroneous instructions given by the trial judge, took this appeal.
Whilst the plea of “not guilty” formally put in issue every material averment of fact charged in the bill, there appeared no real contention as to the primary fact that the road in question has been a public road. It is true the Commonwealth was unable to produce any record of the Court of Quarter Sessions laying out such road and directing it to be opened. The learned judge, however, correctly told the jury that if they found from the evidence such a road had been actually opened on the ground, traveled for years by the public, and had been maintained and kept in repair by the expenditure of the public taxes, they would be warranted in finding it to have been a public road. As the testimony on this subject appears to have been ample in quantity and altogether uncontradicted, it is hardly possible the verdict of the jury could have rested on a disposition of that question adverse to the claim of the Commonwealth. As the defendants themselves conceded......they had never done or attempted to do any work on this road, had allowed it to remain obstructed by a slide from the hill and then to be actually fenced up by one or more of the adjoining landowners, their failure to comply in any reasonable way with the duty imposed upon them by the statutes was manifest.
How did they undertake to defend or excuse their apparent failure to discharge their legal obligation? The learned court below received in evidence, over the objection of the district attorney, a record of the Court of Quarter Sessions which showed a proceeding, begun some time before the bill was found, to have the road in question vacated. A petition was filed, viewers were appointed and made a report urging the vacation of the road. Upon exceptions filed, the report was set aside by the Court of Quarter Sessions. It became therefore as ineffective to excuse the defendants as if it had never been *544begun and its admission in evidence, at the best, bnt tended to obscure in the minds of the jury the real issue they were sworn to try. Evidence was also admitted, over like objections, to show later offers on the part of some of the taxpayers of the township to have the road vacated, but, down to the time of the finding of the bill and the trial of the case, no such offer had resulted in anything. Again testimony was received. tending to show that in the opinion of the witnesses the road was laid out on the wrong location and that its maintenance was unnecessarily expensive and other like matters. From this the jury were permitted to find that if the supervisors, in good faith, without malicious intent, exercised their own discretion in a reasonable way, they were justified in permitting this road to become absolutely closed up and thus in effect vacated by the act or neglect of the supervisors themselves.
It appears to us, from this brief statement, the case was tried in the court below on a theory which we must regard as untenable. Whether or not there was a public highway, in the absence of a record showing one, might well become a mixed question of law and fact for determination by the jury under proper instructions from the court. With that fact found in favor of the Commonwealth, .the law itself cast upon the supervisors the burden of keeping the road at least open and making such reasonable repairs thereon as the conditions, financial and otherwise, would make practicable. But they were not vested with any discretion to throw off entirely and refuse to perform in any way the duty imposed upon them by the law. Without taking up in detail the numerous assignments of error, we have said enough to indicate that the case must be retried along the lines herein laid down.
In such cases it might be a matter of prudence andin aid of the performance of the duties of a trial judge to make an order requiring the stenographer to take the evidence in shorthand, but we aretoot convinced there *545was any binding obligation upon him to do that, and the first assignment of error is overruled.
The judgment of the Court of Quarter Sessions is reversed and a venire facias de novo awarded.