Green v. Green

• Decision Date: 30 April 1864
• Citation: 1864 WL 2988,34 Ill. 320
• Parties: HENRY R. GREEN, JOSEPH A. PATTERSON, JOHN HOLMES and JOHN SNEDECKERv.NATHANIEL W. GREEN.
• Court: Illinois Supreme Court

34 Ill. 320

1864 WL 2988 (Ill.)

HENRY R. GREEN, JOSEPH A. PATTERSON, JOHN HOLMES and JOHN SNEDECKER

v.NATHANIEL W. GREEN.

Supreme Court of Illinois.

April Term, 1864.

ERROR to Circuit Court of Tazewell County.

Bill in equity filed by defendant in error against the three first named plaintiffs in error, as commissioners of highways, and the last named, as overseer of highways, to injoin the opening of a public road across the farm of defendant in error.

The case is sufficiently stated in the opinion.

Bangs, Shaw & Bergen, for plaintiffs in error.

Cooper & Moss, for defendant in error.

WALKER, C. J.

The statute regulating township organization has declared that unless a public road, surveyed and located by the town authorities, shall be opened within five years, the same shall become vacated. Scates' Comp., 364, § 17. Such nonuser for the limited period operates as an abandonment, and remits the owners of the land which had been condemned for the use of the public to their former rights in the property. And whether the right of way has been obtained by release or by condemnation or payment of damages, the right of the owner to resume the exclusive use and occupancy of the land is complete and unqualified after such abandonment. Had the full period of five years expired after this road was located without its being opened, there could be no question of the right of defendant in error to prevent the opening of the road through his premises.

The bill alleges, and the fact is admitted by the demurrer, that the road was located across the township on the 27th day of June, 1857, and the commissioners proposed to open that portion passing through the premises of defendant in error at the date of suing out the writ of injunction, which was on the 26th of June, 1862. The bill alleges that the land through which the road was located, for its whole length west of defendant in error, was inclosed and in cultivation,¹ and the right of way had not been procured by release from the owners or by payment of the damages assessed for the purpose, nor had the means been provided for their payment, and that it was impracticable within the five years to pay the damages and open the road, as notices had not been given to the owners. It was also claimed that the road had thereby been abandoned, and the commissioners and those acting under them would become trespassers, by entering upon the premises of defendant in error and opening that portion of the road. The allegations of the bill, which must be taken as true, show that the purposes which had induced the location of the road had ceased to operate. The road petitioned for, surveyed and established, was an entirety. These acts were all performed to create an entire road, and not to create sections or parts of a road. It was to obtain a thoroughfare on this line for the public across the township, and not across the farm of defendant in error. And to have avoided vacating the road, it should have been opened its entire length within five years from the time of its location. That effect could not be avoided by opening portions within the time....