Grube v. Nichols
| Decision Date | 30 April 1864 |
| Citation | 1864 WL 3105,36 Ill. 92 |
| Parties | LEWIS GRUBEv.DAVID NICHOLS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Circuit Court of Bureau County.
The case is sufficiently stated in the opinion.
Stipp & Gibbons, and Eckels & Kyle, for appellant.
J. I. Taylor, for appellee.
This was a prosecution instituted before a justice of the peace, for the recovery of a penalty for the continuance of an obstruction to a public highway. The disputed questions relate alone to the location or legal existence of the road. The evidence was voluminous, and was, as is usually the case, not free from contrariety, when the question relates to the location or dedication of a public highway. What it proved was a question belonging to the jury to determine, under proper instructions given by the court. Those given in this case are numerous, and the giving of a portion of those asked by appellee, it is insisted, was erroneous and calculated to mislead the jury. In the view we take of this case, we deem it unnecessary to consider any other questions, and shall therefore confine ourselves to their consideration.
The plaintiff's fourth instruction informed the jury, that if it appeared from the evidence that a public road was staked or laid out; was used by the public as a road until it was obstructed by defendant; that while so used it was worked and kept in repair by the proper public authorities, and that the owner or owners of the land over which it passed assented to such use, then such road is a public highway. We are aware of but three modes in which a public highway may be established. First, in the mode provided in the statute, by condemnation; secondly, by grant, which may be established by producing the deed making the grant, or by long-continued user, which implies a previous grant, which must have been for twenty years or more; and thirdly, by dedication to public use by the owner of the soil. This instruction adopts neither of these modes, but rather seems to declare that a portion only of the requisites of all will suffice. This instruction fails to inform the jury, that it was necessary for the road to have been staked or laid out by persons acting under and conforming to legal authority and requirements. These were prerequisites to its validity. The user referred to is insufficient, because the instruction does not require twenty years use, and there being no proof of use for that length of time, it would have been unsupported by evidence to have limited it to that period. This then failed to create a road by grant or prescription. And to make a sufficient dedication, the owner of the soil must devote 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. But when a dedication is relied upon to establish the right, the acts of both the donor and of the public authorities should be unequivocal and satisfactory of the design to dedicate on the one part, and to accept and appropriate to public use on the other. This instruction announces no such principle. The facts referred to in the instruction may be such as to warrant the jury in finding the existence of a road, but it fails to inform them how a road may be created in each or either of the three modes. This it should have done, and then left the jury to say whether the road had been established. We think this instruction was calculated to mislead the jury, and should therefore have been modified before given, or otherwise refused.
The seventh of plaintiff's instructions is subject to the same objections. It announces, as a rule, that the public acquires a right to a highway, simply by the owner of land permitting the public to use a passway over it for such a length of time as would produce inconvenience to the public by its obstruction. This instruction wholly ignores each of the modes by which we have seen that the public right may alone be acquired, and announces an entirely different mode. Again, the first clause of the eleventh of plaintiff's instructions is...
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Flansburg v. Basin
......McMullen, 38 Ill. 237; Evans v. George, 80 Ill. 51; Hatch v. Marsh, 71 Ill. 370. Though for this alone there might not be a reversal. Grube v. Nichols, 36 Ill. 92. It is also said that a failure to exercise ordinary care in either one of these particulars, though it may ......
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Railroad Co. v. Roseville
...... C., 313; Barclay v. Howell's Lessee, 6 Peters, 498; Quinn. v. Anderson et al., 70 Cal. 454; Benham et al. v. Potter et. al., 52 Conn. 248; Grube v. Nichols, 36 Ill. 92; Flack et al. v. Village of Green Island, 122 N.Y. 107; Dick et al. v. City. of Toledo, 11 C. C., 349; City of Steubenville ......
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Tuyl v. Riner
......Eliz. 197; Am. Lead. Cas. 105. Instructions should state the law correctly, and each instruction should be correct in itself: Grube v. Nichols, 36 Ill. 92; C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499; C. & A. R. R. Co. v. Murray, 62 Ill. 326; Baldwin v. Killian, 63 Ill. ......
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Newmyer v. Roush
...... taken charge of by proper officers. That it was not a public. highway by prescription, see Toof v. City of. Decatur , 19 Ill.App. 204; Grube v. Nichols , 36. Ill. 92. And there is no claim that it was laid out as a. public highway in pursuance of the statute. The evidence,. however, ......