Gentleman v. Soule
| Citation | 1863 WL 3182,32 Ill. 271,83 Am.Dec. 264 |
| Parties | WILLIAM GENTLEMANv.LEWIS SOULE. |
| Decision Date | 30 April 1863 |
| Court | Supreme Court of Illinois |
ERROR to Circuit Court of Kendall County.
Debt by defendant in error against plaintiff in error, under the statute (Sess. Laws 1852, 176), imposing a penalty for obstructing public roads. So much of the order of the highway commissioners, referred to by the court, as is material to an understanding of the case, is as follows: “STATE OF ILLINOIS, LA SALLE COUNTY-- Town of Grand Rapids.
Whereas, It appearing to the commissioners of highways, in and for said town, that a road or highway [describing it in general terms] has been used for such highway or road for twenty years; and it further appears to said commissioners of highways that said road or highway is still, and at this time, is used as such road or highway, has never been recorded, now, therefore, we, the undersigned, commissioners of highways in and for said town of Grand Rapids, do order that said road or highway be ascertained, described and entered of record in the clerk's office of said town, according to a survey which has been made under our direction, by W. F. Witmore, county surveyor of La Salle county, as follows, to wit: [describing it by courses and distances]. And we do further order that the line of said survey be the center of said road or highway, and that the same be, and is hereby declared to be, a public highway of the width of four rods. Given under our hands this 20th day of February, 1860.”
[Signed by said commissioners.]
The judgments in both the courts below were for the plaintiff. The remaining facts are sufficiently stated by the court.
Glover, Cook & Campbell, for plaintiff in error.
Gray, Avery & Bushnell, for defendant in error.
The overruling of a motion for a new trial by the court below is assigned for error, and the only question presented by this record is one of fact. And it is whether the evidence establishes the charge, that the plaintiff in error obstructed a public highway as alleged in the complaint. That he erected the obstruction, there is no dispute, but it is denied that it was in a public highway. Defendant in error makes no claim that such a road was ever established under the statute; but he does contend, that the evidence establishes a public road, both by prescription and by dedication. On the first of these questions, as might be expected, in tracing the history of such a transaction through a length of time, the evidence is, to some extent, inconclusive and contradictory.
We think, after a careful examination of all the evidence, that it fails to establish a prescriptive right in the public, to use the portion of the road in controversy as a public highway. The evidence fails to show that there was a continuous use of this track, by public travel, for twenty years. It appears there were several lines of travel, all converging to the ford on the Illinois river, but they were too far separated from each other to constitute but one road. They do not seem to be mere departures from one common track, to avoid a temporary obstruction. They seem to have been separate and independent, having no portion or even a point in common, except the ford to which they all converged. It is true, that travel may slightly deviate from the thread of the road to avoid an obstruction, at any point in the road, and still not change the road itself. But it is otherwise when the whole length of the road is abandoned for eight or nine years, and is not sufficiently traveled to prevent its becoming obstructed by the growth of weeds and brush. In such a case, there is not that continued user which is absolutely necessary to establish a prescriptive right.
Pembroke testifies, and he seems to have had ample means of being informed of all the circumstances during the time of which he speaks, that the travel was cut off from this road for eleven or twelve years. That the travel on the road in controversy had only continued four or five years. In this he is substantially supported by the evidence of Lewis, Trumbo, James Brown, Hardin and others. It also appears that plaintiff in error built a barn, and enclosed a lot and calf pasture, over the old track that was traveled in 1835, as much as twenty years before the trial. On the contrary, the witnesses of defendant in error only speak in general terms, that the travel was about where the road now...
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