Mcintyre v. Storey
| Decision Date | 30 September 1875 |
| Citation | 80 Ill. 127,1875 WL 8721 |
| Parties | NEIL MCINTYRE et al.v.EPHRAIM STOREY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Carroll county; the Hon. W. W. HEATON, Judge, presiding.
Messrs. ARMOUR & SHAW, and Mr. J. M. HUNTER, for the appellants.
Mr. M. Y. JOHNSON, for the appellee.
This bill was to enjoin defendants from opening through the premises of complainant what they insist is a public highway. Difficulty had previously existed in regard to the existence of a public road at the point in controversy. Defendants, or other parties, had torn down the fences, under pretense of opening to the use of the public the highway, and complainant had as often restored it. The town of Washington, in which the premises are situated, had prosecuted complainant under the statute for obstructing the highway, and in two civil suits, commenced for that purpose, had recovered the penalties imposed by the statute. Complainant had commenced a suit in trespass in the JoDaviess county circuit court, against the parties, for damages occasioned to his property by reason of the wrongful tearing down of his fences.
Defendants admit, in their answer, they had torn down and removed the fences of complainant, as charged in the bill. They allege, however, they are officers of the town, having charge of the public roads within its limits, and express a purpose to continue to remove any fences complainant may erect in or across what they claim to be a highway, as they say they have a lawful right to do.
The point is made, that chancery has no jurisdiction in the premises, and the remedy, if any, is at law. This position can not be maintained. If there is no highway at the point in controversy that the town officers may lawfully keep open for the use of the public, then the acts defendants admit they propose to do would constitute a continuing trespass, might cause irreparable mischief, perhaps lead to continuous strife in the assertion and maintenance of what the parties may deem their respective rights, and ultimately produce serious breaches of the peace and acts of violence. The facts alleged constitute a clear ground for the intervention of a court of equity. Indeed, no complete remedy can be had at law. The jurisdiction of a court of equity in such cases is undoubted.
The principal facts appearing from the record out of which this controversy arose, may be briefly stated. Complainant alleges there never was any public road over his land where the fence was torn down, either by use, prescription, grant or dedication, or any legally laid out road. On the contrary, defendants aver a legal highway existed; that it was needed and much used; that it was a legal highway of the town at the time complainant built his fence in and across the same; that it had been a legal highway more than twenty years prior to such fencing up, and it has remained and now is such highway. This is the distinct issue made by the parties in their respective pleadings.
A large amount of testimony was heard on the trial. It was contradictory in the extreme, and much of it totally irreconcilable. We have examined the case with as much care as its importance demands, and shall simply state our conclusions from such examination, without attempting to comment upon all the evidence. It would be impracticable to do so without extending this opinion to an unreasonable length, and would serve no useful purpose if we should do so.
Admitting, as defendants do, the committing of the grievances complained of, and their purpose to continue the same acts, it would seem the burden is on them to show a justification for their conduct. This they have attempted to do by alleging they are public officers, and were removing obstructions from a public highway, as they had a lawful right to do. How the public acquired the right of way or an easement over complainant's land is not distinctly set forth. There is no pretense any public road was ever laid out and established by the proper authorities of the town or county, in...
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