Owens v. Crossett

• Decision Date: 31 January 1883
• Citation: 105 Ill. 354,1883 WL 10140
• Parties: SALLIE G. OWENS et al.v.RUSSELL CROSSETT.
• Court: Illinois Supreme Court

105 Ill. 354

1883 WL 10140 (Ill.)

SALLIE G. OWENS et al.

v.RUSSELL CROSSETT.

Supreme Court of Illinois.

Filed at Mt. Vernon Jan. 31, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Marion county; the Hon. GEORGE W. WALL, Judge, presiding.

Mr. WILLIAM WALKER, and Mr. HENRY C. GOODNOW, for the appellants:

Injunction is a proper remedy to enjoin a continuous trespass. Smith v. Bangs, 15 Ill. 400; Smith v. Price, 39 Id. 28; City of Peoria v. Johnson, 56 Id. 48; McIntyre v. Story et al. 80 Id. 127.

The act of 1847 is in violation of sections 8 and 11, of article 8, of the constitution of 1818, that “no citizen shall be deprived of his property without due process of law, nor without just compensation.” The terms “law of the land,” and “due process of law,” are synonymous. Reynolds v. Baker, 6 Cold. 221; State v. Statin, 6 Id. 234; Bullock v. Geomble, 45 Ill. 218.

Those terms mean a general public law, equally binding on all members of the State. Vaughn v. Haddell, 2 Yerg. 260; Walby v. Kennedy, Id. 554; State Bank v. Cooper, Id. 599; Jones v. Perry, 10 Id. 59.

To give the public a right by user to a road, the user must be adverse. 3 Kent, 419.

There can be no adverse user so long as the owner has no desire or occasion to use the land. Warren v. Jacksonville, 15 Ill. 236; Kyle v. Town of Logan, 87 Id. 67.

Mr. M. SCHÆFFER, and Mr. T. E. MERRITT, for the appellee:

The use of land for a highway for a period of twenty years is sufficient to establish the existence of the highway. Daniels v. People, 21 Ill. 439; Town of Lewistown v. Proctor, 27 Id. 414.

A public road may be established by user as well as by the record of its being laid out, and the evidence of such user may be by parol. Commonwealth v. Low, 3 Pick. 412; Green v. Canaan, 29 Conn. 167; Folger v. Worth, 19 Pick. 108; Washburn on Easements and Servitudes, 173.

The failure, if any, to file the plat in Marion county, should not vitiate the action of the commissioners. This was merely directory. School Directors v. School Directors, 73 Ill. 249. Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a bill in equity, filed by appellants, to enjoin appellee from removing the fence on the opposite sides of a field, where it is claimed a road enters and passes through the field. Complainants deny that there is any regular, legally laid out or established road that passes through the field, and defendant claims there is, and justifies his acts on the ground that he is a road commissioner, and has the right, and that it is his duty, to remove the fence as an obstruction, and keep the road open and free to travel by the public. These are the grounds of the controversy.

It is first urged in affirmance of the decree dismissing the bill, that it will not lie to enjoin a trespass. Such is undoubtedly the rule where it is a simple trespass to property, and is but a single act, and the person committing or threatening the trespass is able to respond in damages; but where he is insolvent, and repeated trespasses of a grave character are threatened to be repeated, equity will interfere to prevent the wrong, by restraining the threatened trespass. Here, the fence had been removed a considerable number of times, and it is admitted that defendant had said he would, and intended to, remove it as often as it should be replaced, and that he has no property subject to execution. This brings the case within the exception to the general rule, and authorized the court to entertain jurisdiction of the case, because there was not an adequate remedy at law, and also to prevent a multiplicity of suits at law.

Appellee has endeavored to establish his defence by showing that the road was located and established by commissioners appointed by the act of the legislature, adopted the 27th of February, 1847. (Sess. Laws, 93.) Also, by proof that, under the appointment of commissioners by the county commissioners' court, at its September term, 1842, a road was located, and is established, of which the portion in controversy is a part, and further, that the road is established by user as a public highway for twenty years or more. The claim that this portion of the road is any part of that located by the county commissioners' court, in 1842, is not shown. There is no evidence showing, or tending to show, where that road was in fact located. The general direction no doubt appears, but there is no evidence that it passed over any portion of the land of appellants. For aught that appears, it may not have passed within miles of this road at that point. It devolved on appellee not only to prove that the road was established, but that it was at the precise places where he removed the fence, to establish this defence. This he has clearly failed to do.

Has appellee proved that this is a part of the road located by the commissioners appointed by the General Assembly? The proof shows that they located a road, but it does not show that this is any part of that road. Some field notes were read in evidence, purporting to be connected with the location of a road by the commissioners appointed by the act of February 27, 1847, and purporting to be signed by Seth Fuller, surveyor of Bond county, and bearing date the 19th day of August, 1847. The paper has the file mark of the county clerk of Marion county, on the...