Rodgers v. Hess
| Decision Date | 08 June 1927 |
| Docket Number | No. 17497.,17497. |
| Citation | 156 N.E. 811,325 Ill. 603 |
| Parties | RODGERS v. HESS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Suit by William H. Rodgers against George Hess, wherein defendant filed a cross-bill. Decree dismissing to original bill and sustaining the cross-bill, and complainant appeals.
Affirmed.
Appeal from Circuit Court, Will County; Frederick A. Hill, judge.
A. A. Offerman, of Joliet (William C. Mooney, of Joliet, of counsel), for appellant.
Robert E. Haley, of Joliet, for appellee.
On September 10, 1925, William H. Rodgers filed his bill in the circuit court of Will county against George Hess, alleging that he, complainant, owned certain land in the town of Joliet, in Will county, which for many years had been inclosed by fences; that for a considerable period defendant had traveled across a part of complainant's land, and, although notified to desist, on April 16, 1925, demolished the gates in the fences and continued his trespasses since, whereby complainant's cattle have run at large and he has suffered irreparable damage. The prayer of the bill was for an injunction to restrain defendant from opening or interfering with the gates or fences, or driving or traveling upon the land. Defendant filed an answer and a supplemental answer, in which he averred that in the year [325 Ill. 605]1861 a public highway running east and west between complainant's and defendant's lands had been established; that this highway had been used by the public for upwards of 60 years and by defendant for more than 30 years; that the gates erected by complainant were obstructions in this highway, and that defendant removed them, doing no unnecessary damage. Defendant also filed a cross-bill, in which, after alleging the facts set forth in his answers, he charged that the only access to his land was over the public highway so established, and that complainant's acts deprived him of its use, causing him irreparable damage. The prayer of the cross-bill was that complainant be enjoined from interfering with free access to the highway, and that it be kept open for public travel. Complainant answered the cross-bill, denying the sufficiency of the proceedings to establish the highway, its use by the public, and the right to the relief sought by the cross-complainant. After a hearing, the court by its decree dismissed the original bill for want of equity, sustained the cross-bill, and perpetually enjoined complainant from interfering with the free and unobstructed use of the highway. From that decree complainant prosecutes this appeal.
Appellant and appellee own land in the south half of section 30 and the northwest quarter of section 31, township 35 north, range 10 east of the third principal meridian, in Will county. Appellant acquired and took possession of a part of his land in 1905 and of the remaining portion in 1908. Appellee purchased the land on which he resides in 1902 and had occupied it for 11 years prior to that time as a tenant. Since his purchase appellee made substantial and valuable improvements upon his land. Appellant's house faces south and is located about 75 feet north of the line dividing sections 30 and 31, and approximately 3,075 feet west of the southeast corner of section 30. Appellee's house faces north and stands about 75 feet south of the same section line, and nearly 950 feet west of appellant'shouse. Proceeding west from appellee's house about 900 feet the section line intersects the right of way of the Chicago & Alton Railroad, beyond which lie the right of way of the Atchison, Topeka & Sante Fé Railroad and the Des Plaines river. From the record in the custody of the town clerk it appears that A. Comstock, a surveyor, under the direction of the commissioners of highways of the town of Joliet, on October 29, 1861, surveyed a road beginning at the southeast corner of section 29 in that town and running thence west on the section line 158 chains and 27 links, to the east bank of the Des Plaines river. The surveyor accompanied his report with a plat showing the road by metes and bounds. The highway commissioners on the same day by their order established the road in accordance with the plat and declared it to be a public highway.
The evidence is undisputed that there is a public highway between sections 30 and 31, extending from the east line of these sections west to the property of appellant, but the existence of the highway farther west is denied by appellant. The highway is fenced from the east line of the sections mentioned to a point about 75 feet west of appellant's house, the distance between these fences varying from 58 feet at the east to 38 feet at the west end. About 275 feet west of appellant's house is a gate in a fence across the highway. This gate is 14 feet wide and its south end is 39 feet north of the south line of section 30, so that a person traveling west on the road would be compelled to deviate from the section line. There is another gate 12 feet wide within the limits of the highway as laid out, about 362 feet west of the first gate. The distance from the second gate to the east line of appellee's land is less than 200 feet and to his house is about 325 feet.
No obstructions existed in the highway until appellant's predecessors in title construced a fence across the road upwards of 35 years ago. At that time most of the land lying west of this fence was used for grazing cattle. The fence was built with the consent of one Hibner, who was then the owner of the property now belonging to appellee, and its purpose was to keep the cattle of the adjoining owners from running at large without the necessity of wholly inclosing their respective lands. From time to time appellant's predecessors in ownership of the land opened the gate for Hibner and others who used the highway. Witnesses testified that gates, with slight changes in location, had existed as long as they could remember; that the gates were recognized as obstructions in the public highway for the benefit of the private owner from whom appellant derived title; and that such former owner and members of his family opened the gates for travelers on the road. Other witnesses testified that the road, west as well as east of appellant's property, had been in use to a greater or less extent since it was laid out. Except by the sufferance of adjoining landowners, appellee has not, nor did his grantors have, any means of ingress or egress other than the highway in question.
On March 1, 1925, appellee and other landowners petitioned the highway commissioners of the town of Joliet for the laying out of a public road 40 feet wide over a portion of the strip of land included within the highway established on October 29, 1861. It was stated in the petition that the appellant was the sole owner of the land over which the proposed road would pass. Notice of a hearing on the petition was given, the hearing was postponed to March 24, 1925, and on that day the prayer of the petition was denied.
[1] Appellant contends that the evidence is insufficient to show that a public road was established on October 29, 1861, or at any time thereafter. By section 55 of article 17 of the act entitled ‘An act to reduce the act to provide for township organization, and the several acts amendatory thereof, into one act, and to amend the same,’ approved February 20, 1861, in force April 1, 1861 (Laws of 1861, pp. 255, 256), it was provided:
etc.
By section 64 of the act entitled ‘An act in regard to roads and bridges,’ in force August 15, 1872 (Laws of 1871-72, p. 691), it was provided that the record of the town clerk or a certified...
To continue reading
Request your trial
- Barker v. Hauberg
-
Chicago & E.I. Ry. Co. v. Rd. Dist. No. 10
...right of all persons to use it as a road when they have occasion to do so. Mudge v. Wagoner, 320 Ill. 357, 151 N. E. 276;Rodgers v. Hess, 325 Ill. 603, 156 N. E. 811. ‘Once a highway always a highway’ is an ancient maxim of the common law. Elliott on Roads and Streets (2d Ed.) § 871. This m......
- Neidhardt v. Frank
-
Klose v. Mende
... ... The Illinois courts interpret section 4 consistently with its language. Our supreme court dealt with a similar issue in Rodgers v. Hess, 325 Ill. 603, 156 N.E. 811 (1927). In Hess, two parties brought suit to determine the appropriate usage of a highway. The appellant ... ...