On Motion for Rehearing.
(Submitted November 7, 1913. Decided December 11, 1913.)
MR. CHIEF JUSTICE BRANTLYdelivered the opinion of the court.
In their petition for a rehearing filed by counsel for defendant in this case, it is said that the original opinion has left it uncertain whether or not the several provisions of the Revised Codes (sections 3212, 3213, 3259, 3466, 3479 and 3480), relating to the power of the authorities of incorporated cities and towns to establish, open, widen and vacate streets, are still in force. Counsel quote from the opinion the following: “But, taking sections 1337 and 1340 together, a legislative intention is clearly evinced to provide a general rule by which highways of every character may be established or vacated,” and then proceed to argue that if this passage is taken literally, it implies that hereafter the streets of cities and towns will be exclusively under the control of the boards of county commissioners. The passage, read in connection with what is said elsewhere in the opinion, is not susceptible of any such interpretation. The Act of 1903, of which sections 1337 and 1340 are a part, applies to county roads only. This is made clear by reference to its title. The same may be said of the chapter of the Political Code of 1895 from which these sections were taken. While this is true, we think the legislature, in declaring that travel by one or more persons over a given route outside of an incorporated city or town is not in itself, in the absence of an assumption of jurisdiction by the board of county commissioners by some definite action, sufficient to constitute adverse use of it as a highway, impliedly declared also that use of a street or alley within the limits *114of an incorporated city or town shall not be deemed adverse until jurisdiction has been assumed by definite action 'by the city or town authorities; and that in either case a highway once established cannot be vacated except by an order of the public authorities having jurisdiction over it.
Rehearing denied.
Mr. Justice Holloway and Mr. Justice Sanner concur.