On Petition for a Rehearing.
Davis, J.It. is earnestly contended, by counsel for appellant, that so much of the third instruction as refers to the usage by the public of the alleged highway for such length of time as has justified juries in other cases finding there was a dedication, was erroneous under any conceivable state of the evidence, and, therefore, that the petition for rehearing filed by appellant should be granted. It is not insisted that the substance of the instruction is erroneous.
When the instructions are considered together as an entirety, they correctly state the law, with the exception that it was not proper to say to the jury what length of time had authorized other juries in finding a dedication. The objectionable part of the instruction was a quotation from Greenleaf on Evidence, and as an abstract proposition correctly states the law. ♦
If the reference to other juries had been omitted, we do not understand there would have been any objection to it. This reference, although manifestly improper, is not of such a character as necessarily to constitute reversible error. In this case, the record, as it comes to us, shows that it does not embrace all of the evidence, and we are not prepared to say that it embraces the complaint. *667Therefore, such improper reference, when construed in the light of the instructions as a whole, should not, in our opinion, in view of the defective and imperfect condition of the record, for the reasons stated in the original opinion, be held to constitute such error as would require the reversal of the judgment of the court below.
Filed Sept. 27, 1893.Petition for rehearing overruled.