Hartshorn v. Potroff

• Decision Date: 30 September 1878
• Parties: JAMES HARTSHORNv.WILLIAM POTROFF et al.
• Court: Illinois Supreme Court

89 Ill. 509

1878 WL 10070 (Ill.)

JAMES HARTSHORN

v.WILLIAM POTROFF et al.

Supreme Court of Illinois.

September Term, 1878.

APPEAL from the Circuit Court of Bureau county; the Hon. E. S. LELAND, Judge, presiding.

Messrs. FARWELL, WARREN & EMERSON, for the appellant.

Mr. J. J. HERRON, for the appellees.

Mr. CHIEF JUSTICE CRAIG delivered the opinion of the Court:

This record presents but one question, and that is whether appellant is estopped from calling in question the validity and legality of the road. If he is, we apprehend the fact will not be contended that the commissioners of highways were justified in removing the obstructions placed by appellant in the road. After the highway was laid out, appellant accepted the damages which had been awarded him by the commissioners, removed his fences, and the land over which the road was laid was appropriated to the public use. For a period of about five years, from 1868 until 1873, the road was worked by the proper authorities, traveled, and in all respects treated by the property owners along the line, the road authorities and the public, as a legal highway. Under such circumstances, what is the law that should control the case?

In Town v. Town of Blackberry, 29 Ill. 137, where a party who had been awarded damages in the laying out of a public highway, and who had received the damages allowed, after the damages were paid him attempted to question the legality of the road, on account of a defect in the proceedings, it was said: “We do not think the plaintiff in error is in a position to take advantage of this delay, if there be any, in filing the papers, since the fact is, that the then owner of the land taken for the road received, on the assessment of the damages, the sum of $85, being the amount allowed to him for the right of way. It is true, the party receiving the money had made a colorable deed of the land to his sons, but remained in position to control it and its proceeds, notwithstanding his deed. After he had received the damages, the sons conveyed the land to the plaintiff in error, with the incumbrance of this road upon it. He can not be permitted to say, now, that the proceedings were void, as his grantor has been paid in money for so much of the land as is occupied by the road.”

In the case of Rees v. The City of Chicago, 38 Ill. 322, a question arose, not unlike the one presented by this record, in a case where lands had been condemned for a street, and it was held, that where, in the exercise of the right of eminent domain, private property is taken for public use, condemnation of the lands effected, the damages assessed, and accepted...