dissenting.
The majority opinion creates serious problems for the future. By judicial legislation, this Court has cast grave doubts on the application of some long-standing and universal rules by which we live and has announced an exception which has parameters that are hazy and, in my opinion, not at all obvious.
Ordinarily, whenever a criminal conviction has been challenged on appeal as being unsupported by the evidence we have applied the familiar rule that:
“A challenge to the sufficiency of the evidence to sustain a conviction requires us to make a comparatively limitative review of the evidence presented at trial. Although the jury is entitled to judge the credibility of witnesses and determine the relative weight to be given their testimony, we are not. Rather, we must look only to the evidence which favors the verdict and accept all the reasonable inferences therefrom to see if the trier of fact could reasonably conclude that the essential elements of the crime were established beyond a reasonable doubt.” (Citations omitted.) State v. Demery, 331 N.W.2d 7, 10 (N.D.1983).
See also State v. Ohnstad, 359 N.W.2d 827 (N.D.1985); State v. Thompson, 359 *224N.W.2d 374 (N.D.1985); State v. Voeller, 356 N.W.2d 115, 117 (N.D.1984).
In 1975, the North Dakota legislative assembly enacted a statute requiring a civil proceeding as a prerequisite to criminal liability. See § 12.1-27.1-05, NDCC, relating to obscenity control. It was repealed by § 1, Chapter 157, S.L. 1981. My research has disclosed no other law or precedent for the proclamation that public roads by prescription are not public roads at all until declared to be so by a civil judgment.
I am convinced that the implication of this opinion will have an impact far beyond the little neighborly Hatfield v. McCoy type feuds over remote rural roads where pheasant hunters may occasionally stray uninvited. For the future practice of traffic and criminal law, this decision opens a pandora’s box.
Each highway, street and road (including alley) is a “public way” and falls within the generic term “public road.” See § 24-01-01.1(20), NDCC. Chapter 24-12, NDCC, prohibits more than public road obstruction and many of the title 39, NDCC, offenses relate to activities on “public roads.”
“Public road” travellers on 1-94, US-83, ND-200, and even Second Street in Bismarck will have to be warned in the future that the right-of-way ahead may have been acquired by gift, purchase, condemnation or perhaps “prescription.” In that way the traveller will know that if he suddenly encounters an obstruction or a plowed-up roadway, he may proceed by civil action to obtain a declaration that the road is a “public road” after which the appropriate law enforcement agencies may proceed with criminal prosecution.
Meyer’s conviction should be affirmed.
Surrogate Judge PEDERSON participated in this case by assignment pursuant to § 27-17-03, NDCC.