Craig v. People of State
| Decision Date | 30 June 1868 |
| Citation | 47 Ill. 487,1868 WL 5028 |
| Parties | JAMES P. CRAIGv.THE PEOPLE OF THE STATE OF ILLINOIS, ex rel. HARVEY NEVILL. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Randolph county; the Hon. SILAS L. BRYAN, Judge, presiding.
The facts of this case fully appear in the opinion of the court.
Mr. THOMAS G. ALLEN, for the appellant.
Mr. HARVEY NEVILL, for the appellees.
We pass by several minor questions raised on this record, and come at once to the only one important in the case, and that is, can a plank road company abandon its franchise, and obstruct any part of the road, without any default on the part of the public, and without the authority of the legislature?
This is an interesting question, not elucidated by any decided cases cited on either side, and must be determined on principle.
The history of this case would appear to be this: On the eleventh of February, 1853, the general assembly of this State passed an act to incorporate the Randolph County Plank Road Company, by the eleventh section of which it was provided, that the county court of that county might, by an order to be entered of record, authorize the company to use, for the construction of the road, any of the public highways of the county. The main track of this road was from Chester, the county seat, to Sparta, with a branch at Randolph to Steelville, to be completed in five years. The charter was for twenty years, and the affairs of the company were to be managed by five directors. The county court, in August, 1853, entered an order allowing the company to use any of the public highways in the county for the construction of the road.
In February, 1854, the legislature amended the original charter, by providing penalties against those who should shunpike, and repealed that portion of the charter which required the road to be completed in five years, and it authorized the company to borrow money and mortgage the road for security.
The company organized, and constructed the road to Randolph, about seven miles from Chester. At this time there was but one public highway from Chester to Randolph, and the plank road, at several places, was constructed on this highway. The consequence was, the old highway throughout its length, from Randolph to Chester, was neglected, became impassable, and in some instances the adjoining owners of the land enclosed it.
In February, 1859, the general assembly passed an act concerning this plank road company, by which the president and directors were authorized to sell at public sale the road, roadbed, right of way, bridges, &c., franchises or other property.
The second section authorized the county court of Randolph county, to purchase at private sale, provided a majority of the legal voters of the county should petition therefor. To this section there is this further proviso: “that until said president and directors shall sell said plank road and other property and franchises, the same shall be and remain the property of the said president, directors and company, their successors and assigns forever, or until abandoned by them, they keeping the same in good repair and condition to be traveled over, any limit or thing in their original franchise to the contrary notwithstanding.”
Section four provided that the purchasers should be deemed the successors of the company, and should enjoy the rights, privileges and immunities granted in the original charter, with the additional power of increasing the rate of tolls fifty per cent. between the first day of November and the first day of April of each year.--Sess. Laws 1853, p 417.
Under the authority of this act, the company sold the road, franchises, toll-gates and bridges, and right of way, with all privileges and appurtenances of every kind, to John Swanwick, and conveyed the same to him by deed duly executed.
From the time this seven miles of the road was constructed, in 1854, the people of the county and traveling public had no other road to the point named, in the direction of Sparta, to travel upon, and it had become indispensable to them.
About the third day of January, 1868, the appellants published in the Randolph County Democrat, and other newspapers in the county, a notice that in consequence of the high price of material and labor, and the growing bad condition of the road, they had resolved to cease making further expenditures upon it, and also to cease taking tolls thereon, from and after the first day of February, 1868, and that the public would be permitted to pass over the roadway and the bridge across Gravel Creek, until the first of April, 1868, with the intimation that at that time, if their right and title should not be purchased for and on behalf of the public, the bridge, and that part of the road belonging in fee to them, would be no longer open to the public, but would be enclosed, and held and used as other private property, exclusively by them, the owners thereof.
In February, 1868, a bill was filed by the States Attorney of the proper judicial circuit, verified by the oath of Harvey Nevill, then county judge of Randolph county, against appellants, setting forth these facts, and praying that appellants might be enjoined and restrained from enclosing the road or bridges so as to interfere with the free use of the same by the public, or in any wise meddling with the road, or the bridges, dykes, embankments, culverts, &c., belonging to the road, for any other purpose than might be necessary for making needful repairs and collecting the tolls, and for general relief.
Appellants having been duly served with process, appeared at the April term, 1868, and entered their motion to dissolve the injunction. This motion was denied, and leave was given complainant to amend the bill, to all which the defendants excepted.
The material amendment consisted in adding to the charging part of the bill, these words: “so that if the threats hereinafter made by defendants should be executed, travelers on said road thereafter would be subject to irreparable annoyance and injury, and such obstruction of said plank road would be a public nuisance; and there is no bridge across the stream on or near said bridge across Gravel Creek, threatened to be closed up.”
A rule being taken for that purpose, the defendants filed their answer to the bill as amended, admitting the grant of the charter, the order made by the county court authorizing the use of any of the public highways of the county on which to construct the plank road, the amendment of the charter in February, 1854, the organization of the company and the construction of the road from Chester to Randolph; admits there was but one public highway from Randolph to Chester, and that the plank road was laid over it in a few places, and avers that not so much as one-half mile of this public highway was used or covered by the company in the construction of the plank road, and that more than six-sevenths of the entire length of the plank road from Chester to Randolph, was constructed on and over land which was, and is, private property, and never dedicated, or otherwise lawfully appropriated to the public for a public highway. They also deny that the public highway from Randolph to Chester has ever been...
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