Fisk v. the Town of Havana.

• Decision Date: 31 January 1878
• Parties: ELI C. FISKv.THE TOWN OF HAVANA.
• Court: Illinois Supreme Court

88 Ill. 208

1878 WL 9844 (Ill.)

ELI C. FISK

v.THE TOWN OF HAVANA.

Supreme Court of Illinois.

January Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Mason county; the Hon. LYMAN LACEY, Judge, presiding.

Messrs. FULLERTON & WALLACE, for the appellant.

Messrs. DEARBORN & CAMPBELL, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This action was originally commenced before a justice of the peace, in the name of the Town of Havana, against Eli C. Fisk, under section 58, chapter 131, Rev. Stat. 1874, to recover a penalty for obstructing a public highway. The defendant appealed from the decision of the justice to the circuit court, where, on a trial before a jury, a judgment was rendered against him for the penalty provided by the statute.

An attempt was made by the commissioners to lay out the road in question in 1871, but the proceedings did not conform to the law then in force. It is not claimed that the road exists by virtue of any proceedings under the statute, nor is the road claimed by grant or prescription, but appellee bases its right of recovery upon the ground, alone, that a public highway was established by dedication. Where a public highway is claimed by dedication of land, the owner of the fee must dedicate the right of way to public use, and it must be accepted and appropriated by the public to that use by travel, and a recognition as a public highway by the proper authorities by repairs, or otherwise; and where a dedication is relied upon to establish the right, the acts of both the donor and of the public authorities should be certain, of the design to dedicate on the one part, and to accept and appropriate to public use on the other. Grube v. Nichols, 36 Ill. 92.

In Marcy v. Taylor, 19 Ill. 634, where the sufficiency of a dedication of certain land for a highway was considered, it is said: “A dedication for a highway may be proven in various ways. It may be established by a written grant, by long and uninterrupted user, or by the acts and declarations of the owner of the premises. But, to be availing it must be made with intent to dedicate.”

In Rees v. The City of Chicago, 38 Ill. 322, it was held, the act of dedication must be free and voluntary, and the intent to dedicate must be shown.

In Angell on Highways, sec. 142, it is declared that “the vital principle of dedication is the intention to dedicate--the animus dedecendi; and whenever this is unequivocally manifested, the dedication, so far as the owner of the soil is concerned, has been made.”

In Harding v. The Town of Hale, 61 Ill. 192, the question of an intention of the owner of the soil to dedicate is held essential to the dedication.

The same principle was announced in Illinois Insurance Co. v. Littlefield, 67 Ill. 368, where it was held, an intention to appropriate the right to the general...