Poole v. Breese

• Decision Date: 14 November 1885
• Citation: 3 N.E. 714,114 Ill. 594
• Parties: POOLE v. BREESE.
• Court: Illinois Supreme Court

114 Ill. 594

3 N.E. 714

POOLE

v.BREESE.

Supreme Court of Illinois.

Filed November 14, 1885.

Appeal from the appellate court, Second district.

This was a bill for an injunction filed by appellant against the appellees. A temporary writ of injunction was awarded. The bill states that appellant was the owner in fee of 40 acres of land; that she resided upon it, and the same was her homestead; that the appellees on the second day of August, 1882, served her with a written notice, signed by them as highway commissioners of Serena township, La Salle county, requiring her to remove her fences on the west side of said land, so as to open, as claimed by them, a public highway across her land, that the same be done on or before the second day of October, 1882, and threatening that, if it were not done by her, they would enter her close and tear down and destroy her fences on said west end of her land, thereby exposing her grain and growing crops to destruction. The bill further states that there had been no order legally establishing any highway upon said land, and that the claim of appellees of the right to enter the close of appellant, and to tear down and destroy her fences, for the purpose of opening a public highway, was a mere pretense having no foundation in fact or in law. The appellees answered the bill, admitting the threatened injury complained of, and justifying their threatened invasion of appellant's private property by alleging that they were commissioners of highways of the town of Serena; and that, by the record of said town, it would appear that the locus in quo was a public highway, duly laid out and established according to law, which highway they were proceeding to open as they lawfully might do in the discharge of an official duty.M. T. Molony

, for appellants.

Richolson & Gentlemen, for appellee.

SCHOLFIELD, J.

The questions in this case arise under the provisions of the ‘Road and Bridge Act,’ in force July 1, 1879. Laws 1879, p. 258 et seq. By paragraph 59 of that act--

‘Any person interested in the decision of the commissioners of highways in determining to or in refusing to lay out, alter, widen, or vacate any road, * * * or in the verdict of any jury in assessing damages in opening, altering, or vacating any road, may appeal from said decision to three supervisors of the county.’

Notice is required to be given within 10 days, and a written petition must be presented to a justice of the peace asking for the appeal, and stating on what grounds it is taken. Another paragraph provides that ‘upon such appeal’ the said supervisors shall have the same power and authority that is by this act conferred on the commissioners of highways, not only in regard to the laying out, altering, widening, or vacating any road, but to cause a jury to be called to assess damages. And by section 100 it is disclosed that the decision of such supervisors shall be final in regard to laying out, altering, widening, or vacating such road, or in refusing to do the same for one year after such decision. Dominey & Lewis, who here appealed, stated in their petition praying an appeal, as the grounds upon which it was taken, the following:

The commissioners did not proceed according to law, nor take any of the steps required by the statute in such cases, to lay out said road, or give the proper notice, and therefore did not acquire jurisdiction of all the persons damaged by laying out of such road, or the persons whose lands would be taken, nor did they acquire jurisdiction of the subject-matter of said proceedings, and therefore had no authority to lay out said proposed road. (2) Said commissioners did not, 20 days after their first meeting, meet to hear reasons for and against laying out said road, nor publicly announce and indorse on petition a memorandumof such decision. (3) Said commissioners did not, before proceeding to ascertain and assess damages, cause a survey and plat of such part of the road to be made, giving the courses and distances and specifying the lands over which it should be laid out, but assessed the damages without such survey. (4) After the damages were assessed they made a survey and drove stakes, whereby the original half section line established by the government survey was changed 12 feet, wherefore damages were assessed to the owners by the government survey, and not with reference to the line fixed upon the ground, by the new survey. (5) The commissioners did not make any effort to agree with the land-owners in regard to damages, nor did they cause the land-owners to be notified that they would apply to some justice, giving the time and place where, to have a jury impaneled to assess damages. (6) The assessment of the damages to the land-owners was unjust, unfair, and unlawful. (7) The proposed road is unnecessary, and the public do not require it, and is an unreasonable burden upon the tax-payers of the township.

The effect of an appeal from an inferior to a superior tribunal, where, as here, the superior tribunal is required to try the question appealed de novo, and render thereon such decision as in its...