Sheaff v. People Ex Rel. Alfred Colwell.
| Decision Date | 30 September 1877 |
| Citation | 29 Am.Rep. 49,87 Ill. 189,1877 WL 9835 |
| Parties | PETER SHEAFF, Com'r,v.THE PEOPLE ex rel. Alfred Colwell. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Winnebago county; the Hon. WILLIAM BROWN, Judge, presiding.
Mr. N. C. WARNER, for the appellant.
Messrs. CRAWFORD & MARSHALL, for the appellee.
This was a petition for a writ of mandamus to the commissioners of highways of the town of Scott, in Ogle county, to compel them to open a public road which had previously been laid out by them. Answer was made, hearing had upon proofs, and the prayer of the petition granted, and appeal taken by the commissioners.
The answer sets up various reasons why the writ should not issue.
The road was laid out one mile in length, along the south line of section one, commencing at the south-west corner of section six, and terminating at the south-west corner of section one, in the next range west. No question is made as to the laying out of the road or the regularity of the proceedings in that respect, but the point is made that the road, at its east end, has no outlet, it not opening into any other road, but terminating on private property; hence it is claimed, that as the road is not a thoroughfare, but a cul de sac, it is not a public highway, and authorities under the common law are cited which go in support of the position. It is not to be conceded that that is the doctrine of the common law. Bateman v. Black, 14 Eng. L. & Eq. 69; People v. Kingman, 24 N. Y. 559; Bartlett v. City of Bangor, 67 Me. 460. But however that may be, we do not regard the doctrine as applying to a public road, laid out as such according to the provisions of our statute.
The statute gives to commissioners of highways the power to lay out and establish roads in their respective towns, providing that it shall be done upon petition of not less than twelve freeholders residing near the proposed road, describing it, and the points at which it is to commence and terminate, upon which, the commissioners examine the route and lay out and establish the road, or not, according as, in their judgment, the public interest and convenience may require. The statute requires that the order laying out the road shall declare it to be a public highway. It contains no qualification whatever in the respect of the road being a thoroughfare, only requiring the petition for the road to state the points of commencement and termination, leaving it with the commissioners of highways to determine whether or not the public good requires a road with such termini. The road in question has been thus laid out by the commissioners of highways, with such a termination at the east end as it has, and they must necessarily have adjudged the road as it is, to be of public utility, and it is a public highway, because the statute declares it to be such. The statute must control as against any contrary doctrine of the common law. See The State v. Bishop, 10 Vroom, 226. The road was petitioned for by forty freeholders residing within three miles of it, and was laid out as a public road, the order therefor, at the close, containing the words, “and as so laid out is declared a public highway, of sixty feet wide.” There is no indication whatever pertaining to it of its being laid out as a private road.
It is further answered, that the public interest will not be promoted by the opening of the road; that if opened, it would not be in a condition fit for public use and travel, without first building bridges over a stream of water crossing the road, and over two sloughs crossing the same; that the building of the bridges would require a large expenditure of money; that there are and have been no funds in the hands or control of the commissioners of highways applicable to that purpose; and that the commissioners have the right to exercise a sound discretion as to when the road shall be opened by them, provided they open the same within five years from the time of laying it out.
The command to open the road does not include an order to build the bridges, or to put the road in good condition for public use and travel. It is but to open the road, leaving improvements to be thereafter made, as may be found proper and practicable.
The opening of the road, the removal of the fences from it, would leave it free for passage, so far as that might then be enjoyed. Evidently, and as the proof well enough shows, the freedom of passage over the road in its unimproved state would, to an extent, accommodate the public. The road belongs to the public, and they have the right to the enjoyment of its use, to...
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