Merkel v. Woodside

• Decision Date: 20 February 1929
• Docket Number: No. 19293.,19293.
• Citation: 165 N.E. 163,333 Ill. 489
• Parties: MERKEL v. WOODSIDE.
• Court: Illinois Supreme Court

333 Ill. 489

165 N.E. 163

MERKEL

v.WOODSIDE.

No. 19293.

Supreme Court of Illinois.

Feb. 20, 1929.

Bill for injunction by Samuel Merkel against Isaac Woodside. Decree for plaintiff, and defendant appeals.

Cause transferred to the Appellate Court, Fourth District.

Appeal from Circuit Court, Perry County; Jesse R. Brown, judge.

L. A. Cranston, of Duquoin, for appellant.

D. F. Moore, of Benton, for appellee.

DE YOUNG, C. J.

Samuel Merkel filed a bill of complaint against Isaac Woodside in the circuit court of Perry county for an injunction to restrain the defendant from maintaining an obstruction in a public highway. A decree was rendered in substantial conformity with the prayer of the bill. From that decree the defendant prosecutes this appeal.

It is alleged in the bill that the complainant is possessed of the west half of the southwest quarter of the northwest quarter of section 17, township 5 south, range 1 east of the third principal meridian, in Perry county; that for more than 20 years a public highway separating the north and south halves of sections 17 and 18, and extending approximately three-quarters of a mile west from the center of section 17, has existed; that for the same period this highway has been in general use by the public, and has been maintained and repaired at public expense; that it has never been vacated or abandoned; that it runs adjacent to the homestead of the complainant, and is his only means of ingress and egress; that the defendant, on or about May 1, 1927, built a fence for a distance of 80 rods west from the northeast corner of the southeast quarter of section 18, thereby completely obstructing traffic along the south half of the highway; and that the defendant refuses to remove the obstruction and threatens to prevent its removal by force.

The defendant filed an amended plea, and an amended answer in support of the plea, both verified. By his amended plea the defendant averred that on May 26, 1923, the complainant and others filed a petition with the commissioner of highways, praying that a public road 40 feet in width be laid out; that a portion of this road extended over the south 23 1/2 feet of the southeast quarter of the northeast quarter and the north 16 1/2 feet of the northeast quarter of the southeast quarter of section 18-two strips parallel and contiguous to each other, aggregating 40 feet in width, and constituting that part of the road described in the complainant's bill, which the defendant obstructed by building the fence; that the defendant owns and is in possession of the northeast quarter of the southeast quarter of section 18; that on June 22, 1923, at a special meeting, the commissioner of highways granted the prayer of the petition, provided the complainant and others would defray the damages and improve the road; that neither the complainant nor any other person paid or offered to pay the defendant damages for the north 16 1/2 feet of his land; that nearly four years after the commissioner of highways granted the petition the defendant built the fence along the north line of his land; and that the action of the complainant in petitioning for a new road and his failure to pay the defendant damages for the land taken therefor estop the complainant from maintaining his suit.

The defendant by his amended answer admitted the existence of a public highway along the line dividing the north and south halves of sections 17 and 18, and extending west three-quarters of a mile from the center of section 17, but he denied that it had been used as a public highway for more than 20 years. He averred the filing of the petition with the commissioner of highways for the laying out of a public highway, the proceedings upon the petition, and the granting of its prayer, as set forth in his amended plea. He further averred that for some years prior to the filing of the petition a public road existed, which occupied approximately the north 16 feet of his land, described as the northeast quarter of the southeast quarter of section 18; that there was a fence on the north line of his tract of land, and when the highway commissioner granted the prayer of the petition the owner of the land immediately north of the defendant'sland moved the fence 23 1/2 feet north of the dividing line; that thereafter the public abandoned the road formerly used by it to the south of that line, and has since used the strip to the north; that upon inquiry by the highway commissioner the defendant offered to build a fence 16 1/2 feet south of the north line of his land for $65; that, while this offer was a reasonable one, neither the complainant nor any of the other petitioners paid, or offered to pay, the defendant his damages; that after the lapse of four years from the granting of the petition, and after the abandonment of the road upon the defendant's land, he constructed the fence described in the complainant's bill; and that, upon the payment of $90, which is a reasonable charge, he is willing to move the fence to a line one rod south of and parallel with the north line of his...