Defendant was arrested for obstructing an alley in the city of Mexico, contrary to the ordinances of said city. He was found not guilty in the recorder’s court, and on the city’s appeal to the circuit court, a demurrer to the evidence was sustained, and the city again appeals. The alley, as dedicated on the plat, was one running east and west through the block. The alley claimed to be obstructed by defendant runs north and south. This north and south alley the city attempted to establish at the trial, by proof of dedication, as well as by user. We are of the opinion that the city failed to make out a case under either theory. Landis v. Hamilton, 77 Mo. 554; State v. Proctor, 90 Mo. 334.
If the whole testimony shows that, though a verdict be rendered for plaintiff, it would not be allowed to stand, the court should sustain a demurrer and take the case from the jury. Morgan v. Durfee, 69 Mo. 469, 476; Powell v. Railroad, 76 Mo. 80, 83; Commissioners v. Clark, 94 U. S. 294. The evidence in this case does not show a dedication by the owner. Nor does it show a use of the alley by the public, as a highway, with the acquiescence of the owner for a sufficient length of time to make it a public way by user.
The judgment,
with the concurrence of the other judges,is affirmed