People v. the Commissioners of Highways of Worth Twp.

• Court: Illinois Supreme Court
• Writing for the Court: LAWRENCE
• Citation: People v. the Commissioners of Highways of Worth Twp., 52 Ill. 498, 1869 WL 5481 (Ill. 1869)
• Decision Date: 30 September 1869
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, ex rel. JOSEPH SHURTZ,v.THE COMMISSIONERS OF HIGHWAYS OF WORTH TOWNSHIP, IN THE COUNTY OF WOODFORD.

52 Ill. 498

1869 WL 5481 (Ill.)

THE PEOPLE OF THE STATE OF ILLINOIS, ex rel. JOSEPH SHURTZ,

v.THE COMMISSIONERS OF HIGHWAYS OF WORTH TOWNSHIP, IN THE COUNTY OF WOODFORD.

Supreme Court of Illinois.

September Term, 1869.

APPEAL from the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding.

The opinion states the case. Messrs. CLARK & CHRISTIAN, for the appellants, insisted that, under the third section of the statute on mandamus, when a jury have found a verdict for the petitioner, the court has no discretion to refuse the peremptory writ.

Counsel said, that section of our mandamus act is, in all respects, substantially the same as the 2d section of chapter 20 of the statute of 9 Anne, and in passing upon the latter, Lord DENMAN, C. J. in the Queen v. The Earl of Dartmouth, 5 Q. B. 881, held that, after the issues (feigned issue) had been submitted to the jury, and a verdict rendered by the jury, the only thing left for the court to do, was to follow the plain provisions of the act; that is, if the verdict was in favor of the relator, the peremptory writ must be granted, and that without delay, provided the court could see no other remedy. Rev. Stat. Chap. 67, sec. 3; Stat. 9 Anne, Chap. 20, sec. 2.

Messrs. INGERSOLL & MCCUNE, and Mr. S. D. PUTERBAUGH, for the appellees.

No public highway can be established by dedication merely, and without the assent, express or implied, of the town or county bound by law to keep it in repair. Bower v. Suffolk Manufacturing Co. 4 Cush. 332; Dimon v. The People, 17 Ill. 422; Town of Lewistown v. Proctor, 27 Ill. 418; Eyman v. The People, 1 Gilm. 9.

If such were not the law, any land owner might, for his own interest, and without regard to public convenience or necessity, establish a highway, and subject the town or county within which it lies, to the burden of supporting it. There can certainly be no good reason why the burden of keeping a road in repair, and of building and maintaining bridges, should be imposed upon towns without their assent, and without any opportunity to make their objections. Commissioners of highways are empowered to inquire into when and where new roads are needed, and proceed to lay out such as the public exigencies require, having due regard to private rights and public burdens. 2 Greenlf. Ev. sec. 662; Hemphill v. City of Boston, 8 Cush. 195; Gentleman v. Soule, 32 Ill. 279; Alvord v. Ashley, 17 Ill. 363.

It is urged by the relator that the court below erred in refusing the peremptory mandamus.

Granting the writ of mandamus, under many circumstances where it might be a proper remedy, is yet within the sound discretion of the court. The People, &c. v. Curyea, 16 Ill. 447; The People, &c. v. Kilduff, 15 Ill. 501; Tapping on Mandamus, 165, 166; The People v. Hatch, 33 Ill. 9. In the case of The People v. Curyea, this court refused a mandamus to compel commissioners of highways to open a road. We also cite, People v. Commissioners, &c. 27 Barb. 94; Ex parte Clapper, 3 Hill, N. Y. R. 458.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was a petition for a mandamus, by Joseph Shurtz, as relator, to compel the commissioners of highways of Worth township to “ascertain, describe, and enter of record in the town clerk's office,” a certain road, on the ground that it had been a public highway for twenty years, that duty being imposed on such commissioners in certain cases, by the third section of article 17 of the township organization law of 1861, page 764 of Gross' Statutes. The defendants answered, denying the existence of the alleged road, and an issue was made up for a jury, who returned a verdict that the road in question had been open and used by the public for twenty years. Notwithstanding the verdict, the court refused to award a peremptory mandamus, but dismissed the proceeding. The relator appealed, and insists that, after the finding of the jury, the court had no discretion as to awarding the writ. The appellees assign cross errors, insisting the court erred in its instructions to the jury.

The cross errors are well assigned.

The court refused to give the jury for the respondents the following instructions, or any equivalent therefor: “The voluntary use of a way by the public with the assent of the owner of the soil, is not, of itself, sufficient to make it a public highway, and impose upon the proper public authorities the duty of repair.”

“The court instructs the jury, if they believe, from the evidence, that the township of Worth or the county have never acquiesced in said road being a public highway, then the jury will find that the road in question is not a highway.”

On the other hand the court instructed, it was not necessary to prove the town authorities had recognized said road as a public highway.

In its ruling on these instructions we think the court erred.

In a question of dedication of a right of way, as between the owner and the public, the recognition of a road by the county or town authorities as a public highway, would of course not be necessary. As against the owner, the acceptance of the dedication may be by the general public, which can manifest its acceptance by using the road, and thus acquire a right of way. But in a proceeding of this character, the object of which is to impose upon the town the expense of building bridges and keeping roads in...