Nealy v. Brown

• Decision Date: 31 December 1844
• Citation: 1 Gilman 10,1844 WL 4047,6 Ill. 10
• Parties: JOSHUA NEALYv.CHAUNCEY BROWN et al., county commissioners of Jersey county.
• Court: Illinois Supreme Court

1 Gilman 10

6 Ill. 10

1844 WL 4047 (Ill.)

JOSHUA NEALY

v.CHAUNCEY BROWN et al., county commissioners of Jersey county.

Supreme Court of Illinois.

December Term, 1844.

DEBT on the statute for obstructing a public highway. The cause was heard in the Greene circuit court, before the Hon. SAMUEL D. LOCKWOOD and a jury, at the October term, 1843, the venue having been changed from Jersey county. The jury found a verdict against the defendant below, and a fine of $20 was imposed, from which judgment he prosecutes his writ of error in this court.

J. W. CHICKERING and W. K. TITCOMB, for the plaintiff in error, raised several points, among which were the following:

I. The court erred in admitting in evidence, at the trial, an exemplification of a part of the record of the county commissioners court, in the matter of the establishment of the road.

First. County courts are of limited jurisdiction, and their jurisdiction must appear on the face of the proceedings. R. L. 142, 143, Gale's Stat. 161, 162; Key v. Collins, 1 Scam. 403; Trader v. McKee, Ib. 558, and note on 561; Beaubien v. Brinckerhoff, 2 Scam. 269, and note on 274; Story's Eq. Pl. 22, n. 3; 4 Starkie's Ev. 1277; Williams v. Peyton's Lessees, 4 Wheat. 77.

Second. Proceedings under road laws are summary, and every irregularity vitiates. The defendant must be shown that all is regular. R. L. 535, Gale's Stat. 584; Laws of 1835, 138; Rex v. Crooke, Cowp. 26; Vanhorne v. Dorrance, 2 Dall. 316; Smith v Hileman, 1 Scam. 325; Garrett v. Wiggins, Ib. 337; Williams v. Peyton's Lessees, 4 Wheat 77.

II. Parol testimony of the location of the road was improperly admitted. It was irrelevant, or at least of a secondary nature. The stakes were used in locating a road; this action is for obstructing one constructed. 3 Starkie's Ev. 387; 1 Greenleaf's Ev. 316; Fitzhugh v. Runyon, 8 Johns. 375; Jackson v. Sill, do. 201; 4 Starkie's Ev. 81, 995, 997, 1002, 1043; 3 Bl. Com. (Chitty's) 24, and note (3); 1 Greenl. Ev. 94, 99, 101, 315, 546; Rust v. Frothingham, Bre. 259.

If the county court be only a corporation, the written order for establishing a road was the only admissible evidence. Owings v. Speed, 5 Wheat. 420; it is estopped by its record. The Mayor of Thetford's Case, 1 Salk. 192; 1 Bl. Com. (Chitty's) 475, note (5).

III. The court erred in refusing to instruct the jury, that, if they believed from the evidence in the existence of any irregularity about the location of the road charged to be obstructed, and that the requirements of the statutes were not complied with; or that there is any uncertainty as to where the road is, and that it may not run over the land of this defendant, he is not liable though he did fence it up on his own land. See authorities cited under the first exception.

Otherpoints, involving the constitutionality of the road laws, were made by the counsel, and authorities cited in support thereof.

M. B. MINER and J. GILLESPIE, for the defendants in error.

The first objection of the plaintiff in error questions the correctness of the court below in admitting the report of the reviewers, indorsed with an order of the commissioner's court directing the road to be opened, as being a part only of the record of the road. In this there is no error. Hallock v. Woolsey, 23 Wend. 329.

Parol testimony was admissible to show that when this road was obstructed, and up to the time charged, it bore the stakes set by the viewers and was traveled by the public. Such evidence does not go to contradict the report, but in aid of it. 1 Greenl. Ev. 95, 99.

It was not the duty of the supervisors to have damages assessed, unless the plaintiff in error objected to the use of the road, and it no where appears in this case that he ever requested, or demanded damages to be assessed. Laws of 1835.

CATON, J.^a1

This was an action of debt for obstructing a public highway, commenced before a justice of the peace of Jersey county, and appealed to the circuit court of that county, whence the venue was changed to the circuit court of the county of Greene. The record presents two bills of exceptions, from the first of which it appears that, upon the trial of the cause, the plaintiffs below offered in evidence a certified copy of an order of the county commissioners' court of Jersey county, which refers to and adopts the report of the viewers appointed to view and locate the road, for the obstruction of which this suit was brought, and establishes said road as a public highway, and directs that the same be opened and kept in repair according to law. To this the defendant objected, but the court allowed it to be read, and this we will first examine.

Was it necessary, before it was competent to read this order, to show that all the previous steps required by the statute had been taken? We think not. The county commissioners are vested with exclusive jurisdiction over all matters in relation to roads in their respective counties, and we are satisfied that sound policy and the public good require that we should presume that the antecedent proceedings had been regular, subject, however, to be rebutted by the other party. If we go behind the order, I know not where we might stop. Should the plaintiff show that a petition was presented, signed by the requisite number of persons, and should he be required to prove that all were legal voters--that the viewers were qualified to act as such, and were sworn, and all the other minute enquiries which ingenuity could invent? Should such be held to be the law, w...