Crear v. Crossly

• Decision Date: 30 April 1866
• Citation: 1866 WL 4452,40 Ill. 175
• Parties: EDWARD CREARv.JOHN CROSSLY.
• Court: Illinois Supreme Court

40 Ill. 175

1866 WL 4452 (Ill.)

EDWARD CREAR

v.JOHN CROSSLY.

Supreme Court of Illinois.

April Term, 1866.

WRIT OF ERROR to the Circuit Court of Jo Daviess county; the Hon. BENJAMIN R. SHELDON, Judge, presiding.

This was an action of trespass quare clausum fregit, brought in the court below by John Crossly against Edward Crear.

The defendant filed three pleas. The first plea was the plea of the general issue, and was withdrawn. The second plea sets forth that the alleged trespasses consisted in passing over a private highway laid out by the commissioners of highways in accordance with law, that damages were assessed and tendered to the plaintiff. The third plea sets up a right of way by necessity, and that the lands of the plaintiff and defendant being adjoining lands, and title derived from a common grantor, the right of way passed as incident to the grant. The plaintiff filed a general demurrer to the pleas. The court sustained the demurrer, and the defendant abided by his pleas. Judgment was rendered on the demurrer in favor of the plaintiff for ten dollars, being the amount claimed in the declaration. The defendant now brings the case to this court by writ of error.

The only question presented is, as to the constitutionality of the ninety-third section of the act of 1861, authorizing the establishment of a private way over the land of another without his consent.

Mr. LOUIS SHISSLER, for the plaintiff in error.

Messrs. GLOVER, COOK and CAMPBELL, for the defendant in error. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This record involves the same question which was presented and considered in the case of Nesbitt v. Trumbo, decided at January Term, 1866 (39 Ill. 110). In that case, after a careful consideration of all of the authorities referred to and to which we had access, it was held, that the ninety-third section of the act of 1861 (Sess. Laws, 263), authorizing the establishment of a private way over the land of another person, and against his will, is repugnant to the eight section of article thirteen, of our Constitution. Having then, fully considered the question, we deem it unnecessary to again discuss it. A distinction is, however, endeavored to be drawn, between the appropriation of a man's land, by this proceeding, and a mere right of way over the land. The same distinction was presented but not discussed in the former case. The distinction, although ingeniously urged, we think cannot be maintained. It is true, that a right of way is but an easement, or servitude as it was called in the civil law. But when it shall be acquired and held in the mode prescribed in this enactment, it, in effect, transfers the fee to the way. The act declares, that, when it shall have been located and the damages paid, the person for whose use it was established, his heirs and assigns, shall have the right to open the same, and have the right of way upon the same forever. For all practical purposes, this amounts to a transfer of the land. The owner is deprived of its use and the other acquires its use perpetually. The transfer of the fee could do no more. The mere change of names does not alter the essential qualities of things. The condemnation of property for public use, and appropriation under the right of eminent domain, for highways, railways and canals, do not deprive the owner of his property to the same extent as would this enactment if enforced; as in those cases the property thus...