Opinion by

This action is for damages for a trespass on the plaintiff’s lands. It is not a proceeding on condemnation to liquidate the *483damages for a taking of land for public use. On tbe trial tbe plaintiff set up that the proceedings previously had to widen the street upon which her property abutted, were void in law, and, therefore, the entering upon the land by the defendant to carry the widening into effect, was in fact a trespass for which she was entitled to damages. This proposition was rightly disposed of by the trial judge. The proceedings of the viewers were held to be regular and the present plaintiff was a party litigant therein. The question of the legality of those proceedings could and should have been raised then. The road sought to be widened was in existence physically. True it had by an act of assembly been declared vacated, but the adjustment of the party lines therein provided to be made had never been accomplished or attempted. The continuous use of the road by the public was sufficient ground upon which to base the proceedings to widen, in the absence of any complaint by the parties in interest. On this presentation the plaintiff had no case to submit to the jury on the question of trespass.

The testimony of the city engineer was, however, permitted to be offered in rebuttal. This disclosed somewhat indefinitely that the defendant in widening the street had not followed the lines of the plan attached to the report of the jury of view, but had in setting back her fence encroached upon the plaintiff’s property. This was some evidence of an actual trespass and led to the trial judge submitting the case to the jury. In doing this, however, he inadvertently referred to the claim as if in some of its aspects it was one for damages for a taking of land for public use. This tended to mislead the jury as to their powers in determining the question of fact. There is but one proper way by which a municipality can condemn land to be used as a public highway, and that is by the proceeding provided by legislation. This, as we have said, is not such a proceeding.

We are of the opinion that the rights of the parties will be better determined by remitting this case for a new trial, when all the facts may be put before the court in a more intelligible and orderly manner than they were on the former trial.

The judgment is therefore reversed and a venire facias de novo awarded.