Town of Bethel v. Pruett

Citation74 N.E. 111,215 Ill. 162
PartiesTOWN OF BETHEL v. PRUETT.
Decision Date17 April 1905
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Appeal from Circuit Court, McDonough County; John A. Gray, Judge.

Action by the town of Bethel against Jacob Pruett. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Charles J. Scofield and Switzer & Miller, for appellant.

Ralph W. Pontious and Neece & Son, for appellee.

This is an action of debt, brought to the September term, 1903, of the McDonough county circuit court, by the appellant, the town of Bethel, against the appellee, Jacob Pruett, to recover a penalty for suffering an alleged obstruction to remain in a public highway after being notified by the highway commissioners of said town to remove the same. An amended declaration was filed on February 3, 1904, consisting of a single count, to which the appellee pleaded nil debet, and issue was joined accordingly. The trial resulted in verdict and judgment in favor of the appellee, the defendant below. Motion for new trial by plaintiff below was overruled, and judgment was rendered on the verdict against the plaintiff for costs in favor of the defendant, to which exception was taken by the plaintiff. The present appeal is prosecuted from such judgment.

MAGRUDER, J. (after stating the facts).

A public highway runs from the town of Plymouth to the town of Industry, a part of which, running east and west, is on the county line between Schuyler and McDonough counties. The town of Bethel, which is in McDonough county, is immediately north of and adjoining the town of Brooklyn, which is in Schuyler county, Schuyler county being south of McDonough county. The declaration avers that on May 2, 1903, the commissioners of said town met in joint session and legally set off to the plaintiff, the town of Bethel, the east half of said public highway; that said public highway has ever since February 1, 1902, been a line road of said counties and towns, and ever since May 2, 1903, the plaintiff town has had jurisdiction of the east half of said highway. The appellee owns the northwest quarter of the northeast quarter of section 4, in Brooklyn township, called the ‘Pruett Homestead’ and he also owns the 40 acres immediately east of and adjoining said northwest quarter, to wit, the northeast quarter of the northeast quarter of said section 4, in Brooklyn township. The public road or highway on the north side of the Pruett land runs on in a westerly direction to the village of Plymouth. On the west side of the Pruett land a public highway called the ‘Brooklyn Road’ comes from the south, and runs north until it intersects the highway in question at the northwest corner of the Pruett land. As we understand the evidence, the highway in question, lying north of the Pruett land, and running east and west, is some 40 feet wide west of the Brooklyn Road, and about 40 feet wide east of the northwest quarter of the northeast quarter of section 4. Appellee does not deny that there is a public highway lying north of his land and running the whole extent of it, which is from 40 to 43 feet wide, but denies that such public highway embraces the strip of ground here in controversy.

The appellant claims that the public highway north of the northwest quarter of the northeast quarter of said section 4, which runs east and west, and connects with the Brooklyn Road on the west side of appellee's land-said Brooklyn Road running north and south-is some 66 or 70 feet wide, instead of having a width of from 40 to 43 feet. It seems that persons traveling north on the Brooklyn Road would turn east through said northwest quarter across a space 26 feet wide at the west side of appellee's land, instead of going north and traveling east upon a strip of land only 40 or 43 feet wide north of appellee's tract of land. As far back as 1867 or 1870 there had been a rail fence running northeast from the Brooklyn Road, and beginning some 66 or 70 feet south of the north line of the highway running east and west upon the north side of appellee's land. Subsequently a hedge fence was planted south of the rail fence, and the rail fence was gradually removed or disappeared. In the spring of 1902 appellee built a fence with posts and wire, beginning on the west side of his land at the Brooklyn Road at a point 26 feet north of the old rail fence, or hedge fence, and running east about 66 rods and 5 or 10 feet, but not running the full distance of 80 rods, which was the length of appellee's tract of 80 acres. This wire fence running eastward joined with the hedge fence which ran northeast and southwest. The tract of land in dispute between the parties is a strip of ground wedgelike in shape, being 26 feet wide at the west end and running to a point at the east end. This wire and post fence is alleged by the appellant town to be an obstruction to the highway, while the contention of the appellee is that the strip in question is a part of his farm.

The question, then, is whether the highway running east and west north of the appellee's land is only 40, or from 40 to 43 feet wide, or whether it diverges from a width of about 40 feet at the northeast corner of the northwest quarter of the northeast quarter of said section 4 and runs southwest to a point on the Brooklyn Road 26 feet south of the wire fence built by appellee.

The appellant town claims that the public highway includes the wedgelike strip in question, and that such strip has become a part of the public highway by dedication and by prescription. Appellee, who has owned the property in question ever since the year 1867, swears that it was never his intention to dedicate this strip to the public as a part of the highway in question, while the appellant claims that a dedication of such strip by the appellee is established by his acts and acquiescence. The main circumstance relied upon by the appellant to show a dedication by appellee is the fact that appellee permitted the rail fence to remain on the south side of the strip, and set out a hedge fence upon the south side of the rail fence. Appellee claims that no acts on the part of the appellant are shown which tend to establish any acceptance by the public, or by the appellant as the representative of the public, of a dedication of the strip in question by appellee. Appellant also claims that the strip in question has been acquired by the public, as a part of the highway, by prescription; that is to say, that, with the knowledge and acquiescence of appellee, the public were permitted to drive upon this strip as a part of the public highway for a period of 20 years or more. Whether or not there was a dedication of the strip in question as a part of the highway, or whether or not the public acquired the same by prescription, were questions which were submitted to the jury under instructions defining what acts and circumstances constitute dedication and what amount of user constitutes prescription. The jury upon the trial below, and the trial court by overruling the motion for new trial and entering judgment upon the verdict of the jury, have settled the questions of fact against the contention of the appellant that the strip in question is a part of the public highway.

First. Appellant contends, however, that, even if there is no reason for disturbing the verdict upon the ground that it is not sustained by the evidence, yet the trial court committed certain errors in the matter of giving and refusing instructions and admitting and excluding testimony. The eleventh instruction, given for the appellee, the defendant below, is complained of as being erroneous, upon the alleged ground that it authorizes the jury to determine the question of an intention to dedicate on the testimony of the appellee alone, instead of requiring the jury to base their finding upon this point upon all the evidence bearing on the question. The appellee testified upon the trial that he never intended to dedicate the strip in question to the public use. This evidence was properly admitted. City of Chicago v. Chicago, Rock Island & Pacific Railway Co., 152 Ill. 561, 38 N. E. 768. It is true, however, that, where the owner swears as to what his intention was in such cases, he can be contradicted by his acts and conduct, or declarations. Id. The first part of the instruction correctly told the jury that, where a dedication is relied upon to establish a road, the acts of both the donor and the public authorities should be unequivocal and satisfactory as showing the design to dedicate on the one part, and to appropriate to public use on the other. Id. The latter part public use on the other. Id. The latter part believed there was no intention by the appellee to dedicate this contested strip of land to the public use as a right of way, then there could be no legal highway over said strip by dedication. It is the law, as announced by this court, that in order to constitute a dedication at common law it is essential that an intention on the part of the proprietor of the land to donate the same to the public use, and an acceptance thereof by the public, be established by the evidence, and that the proof of these facts must be clear, satisfactory, and unequivocal. City of Chicago v. Chicago, Rock Island & Pacific Railway Co., supra.

The first sentence of the instruction, by calling the attention of the jury to the acts of the parties, excluded the idea that they were to determine the intention of the proprietor of the land from his testimony alone as to what his intention was. They...

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