Rd. Dist. No. 4 v. Frailey

• Decision Date: 28 October 1924
• Docket Number: No. 15981.,15981.
• Parties: ROAD DIST. NO. 4 et al. v. FRAILEY.
• Court: Illinois Supreme Court

313 Ill. 568

145 N.E. 195

ROAD DIST. NO. 4 et al.

v.FRAILEY.

No. 15981.

Supreme Court of Illinois.

Oct. 28, 1924.

Error to Circuit Court, Hardin County; Julius C. Kern, Judge.

Action by Road District No. 4 and others against Martha Frailey. Judgment for plaintiffs, and defendant brings error.

Reversed and remanded.Alpheus Gustin, of Chicago, for plaintiff in error.

Clarence E. Soward and James A. Watson, both of Elizabethtown, for defendants in error.

THOMPSON, J.

Viola Belle Oxford, one of the defendants in error, filed with the commissioner of highways of road district No. 4, in Hardin county, a petition asking that a road for private and public use be laid out over the lands of Martha Frailey, plaintiff in error, for the purpose of connecting lands of said defendant in error with a public highway. The necessary steps to lay out the road and assess damages were taken. At the trial, on appeal to the circuit court of Hardin county, there was a judgment in favor of plaintiff in error for $140; $50 for lands taken and $90 damages to lands affected by the taking. These damages were apportioned by the jury; $115 to Oxford and $25 to Road District No. 4. Motions for a new trial and in arrest of judgment were filed and overruled, and judgment was entered on the verdict. This writ of error is prosecuted to review that judgment.

Plaintiff in error does not question the sufficiency of the petition to lay out the road She does, however, contend that the notice given pursuant to the statute is irregular and does not conform to the petition; but it is clear from an examination of the record that she is referring to a notice used in a similar but different proceeding, and which was improperly placed in the transcript in this case. The record before us shows that proper notice was given in accordance with the statute, and that there is no variance between it and the petition.

[1][2][3] Plaintiff in error questions the sufficiency of the plat filed with the commissioner of highways. The petition requests that said road be laid out, beginning at the southwest corner of the northwest quarter of the southwest quarter of section 2, township 12 south, range 10 east of the third principal meridian, and extending south 40 feet wide along the east side of the west line of the southwest quarter of the same quarter section for a distance of seventeen rods and 5 links. The plat filed shows the road laid out with the west line of the southwest quarter as the middle line of the road, so that 20 feet of the road is taken from the southeast quarter of section 3. The surveyor who made the plat testified, on cross-examination by counsel for plaintiff in error, that his notes show that the road was laid out on the east side of the section line, and that the stakes indicating the middle line of the road were driven 20 feet east of the section line, and that in making the plat he erroneously placed the road 20 feet west of where it was laid out. Section 78 of the Roads and Bridges Act (Smith-Hurd Rev. St. 1923, c. 121, § 85) requires the highway commissioner, who has entered the preliminary order granting the prayer of the petition to lay out a new road, to cause a survey and plat of such road to be made by a competent surveyor, who shall report such survey and plat to the commissioner, giving the courses and distances,and specifying the land over which the road is to pass. The surveyor is authorized by the section to make such changes between the termini as the convenience and interest of the public, in his judgment, may require, but he does not have authority to change the termini. This survey and plat, together with the petition, are prerequisites to the fixing of damages sustained by adjoining landowners, and they must be sufficiently accurate and definite to indicate the lands taken and the lands affected by the taking. While the plat filed with the commissioner is inaccurately made, it does not change the northern terminus of the road, and so there is no variance between the survey and the petition in that respect. Deer v. Commissioners of Highways, 109 Ill. 379.

There is no contention that the jury and all the parties concerned did not know what lands were taken and what lands were affected by the laying out of this road, and we are satisfied from the record that there could have been no misunderstanding in this regard. As soon as the commissioner discovered that the survey and plat made by the surveyor were inaccurate, he should have required the correction of the inaccuracies. If the surveyor first designated by him was found to be incompetent, he should have appointed a competent one to make a new survey and plat. We do not consider that the irregularities connected with the making of the survey and plat were such a noncompliance with the statute as deprived the justice of the peace and the circuit court of jurisdiction of the subject-matter. Before a retrial of this cause is had there should be filed a corrected plat and an accurate report of the survey.

[4][5] Plaintiff in error also challenges the sufficiency of the certificate of the commissioner of highways filed with the justice of the peace. Section 82 of the Roads and Bridges Act (Smith-Hurd Rev. St. 1923, c. 121, § 89) requires that in case damages are not released or agreed upon the commissioner shall make a certificate that he is about to lay out a road, describing it and the lands over which it is to be established, naming the owners of such lands, and asking for a jury to assess the damages of such owners. The certificate filed in this case is a lengthy, disjointed document, which states awkwardly the facts required by the statute to be stated. It describes the land over which the road is laid out and names the owner of it. It does not state that the owner and the commissioner were unable to agree upon the amount of damages, but such a statement is not necessary in this proceeding for the reason that the statute makes no such requirement. This holding is supported in principle by the decision in Cahill v. Village of Norwood Park, 149 Ill. 156, 36 N. E. 606. It is sufficient in a case of this character if the fact that the parties could not agree upon the amount of damages is brought to the attention of the court in any manner which will satisfy it of the fact. While the certificate filed in this cause contains much surplusage, we are of the opinion that it is sufficient to give the justice of the peace jurisdiction of the subject-matter.

[6][7][8][9][10][11] The important question presented for our decision and the question which gives this court jurisdiction to review this cause is the challenge to the constitutionality of section 98 of the Roads and Bridges Act (Smith-Hurd Rev. St. 1923, c. 121, § 105) which authorizes the laying out of a road for private and public use. Prior to the adoption of the Constitution of 1870 ...