Breese v. Poole

• Decision Date: 31 May 1885
• Citation: 16 Ill.App. 551,16 Bradw. 551
• Parties: HENRIETTA BREESEv.THOMAS POOLE ET AL.
• Court: United States Appellate Court of Illinois

16 Ill.App. 551

16 Bradw. 551

HENRIETTA BREESE

v.THOMAS POOLE ET AL.

Appellate Court of Illinois, Second District.

May Term, 1885.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of La Salle county; the Hon. GEORGE W. STIPP, Judge, presiding. Opinion filed August 7, 1885.

Messrs. RICHOLSON & GENTLEMAN, for appellant; cited Allison v. Com'rs, 54 Ill. 172.

When an appeal has been taken from the order of the commissioners to three supervisors of the county, the record of the proceedings of the supervisors and their final order properly certified determine as to whether or not a legal highway exists: Frizell v. Rogers, 82 Ill. 109; Hankins v. Calloway, 88 Ill. 155; Commissioners v. Barry, 66 Ill. 499; McIntyre v. Storey, 80 Ill. 131; Owens et al. v. Crossett, 105 Ill. 354; Wood v. Commissioners, 62 Ill. 395; Commissioners v. Durham, 43 Ill. 90; Hyslop v. Finch, 99 Ill. 183; Commissioners v. Harper, 38 Ill. 103; Keech v. People, 22 Ill. 482; Corley v. Kennedy, 28 Ill. 149; Tower v. Pitstick, 55 Ill. 117.

Mr. M. T. MOLONEY, for appellee.

WELCH, J.

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 forty acres of land; that she resided upon it, and the same was her homestead; that the appellees, on the 2d 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 2d day of October, 1882, and threatening that if it was not done by her they would enter her close and tear down and destroy her fences on said west side 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 records 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.

The cause was heard on bill, answer, replication and proofs, and the court found the issue for the appellees and dismissed the bill, continuing the injunction in force during the pendency of the appeal. The important question of issue between the parties to this cause is as to the existence of a public highway upon the locus in quo. On this issue the burden of proof was upon the appellees. McIntyre et al. v. Storey, 80 Ill. 129.

To the proceedings seeking to establish this as a public highway various exceptions were taken by appellant. We shall not undertake to pass upon them seriatim. There was one exception that we consider decisive. The record of the proceedings to establish the proposed highway discloses the fact that after the filing of the final order by the highway commissioners with the town clerk, an appeal was taken to three supervisors of the county; that the supervisors met on the 25th day of August, 1882, examined the route and heard reasons for and against the laying out of said road, and then separated; and that on the 13th day of September they met and signed and left with Thomas Ladkin, a justice of the peace, what purports to be a final order establishing the road and he filed the same in his office. No final order has been filed with the town clerk. Section 38 of the road law of 1879 provides that the...