The motion in arrest of judgment was properly overruled. The indictment follows the language of the statute (Code, Section 2065), which makes it a misdemeanor to “wilfully alter, change, or obstruct any highway, cart-way,mill-road or road leading from or to any church, or other place of public worship, whether the right of way thereto be secured in the manner herein provided for or by purchase, donation or otherwise.”
*806As to tlie exception to the charge, the law is clearly and succinctly stated thus by Reads, J., in Boyden v. Achenbach, 79 N. C., 539: “Where the public has used a way as a public road or cart-way, just as if it had been laid off by order of Court- — as if it had had an overseer and hands and been worked and kept in order — for more than 20 years, it will be presumed that it was so laid off; or that the owner of the land had dedicated it to the public; but the mere user of foot-paths and neighborhood roads without such accompanying circumstances will raise no such presumption however long the time. In State v. McDaniel, 53 N. C., 284, the jury found a special verdict that the road had been used by the neighborhood for 60 years in going to church, to mill, and to public highways on foot, or horseback and in vehicles, and yet it was not held to be a public road which it was indictable to obstruct.” To like purport, State v. Gross, 119 N. C., 868; Kennedy v. Williams, 87 N. C., 6; State v. Johnson, 33 N. C., 647. It is true that in McDaniel’s case supra, it was held, as the law then stood, that a road to and from a church, closed up at one end, a cul de sac as the Court termed it, could not be a public road because not a thoroughfare, and therefore that its obstruction was not indictable, and that Chapter 189, Acts 1872-3 (now Code, Section 2065) has since made it indictable, but none the less it is still essential in the absence of a laying out by public authority under The Code Section 2062, or actual dedication, not only that there must be 20 years user (as there was in this case), but the road must have been worked and kept in order by public authority. Boyden v. Achenbach, supra. For error in instruction to the jury there must be a new trial.
New trial.