Town of Mattoon v. Elliott

• Decision Date: 18 June 1913
• Parties: TOWN OF MATTOON v. ELLIOTT.
• Court: Illinois Supreme Court

259 Ill. 72
102 N.E. 251

TOWN OF MATTOON
v.
ELLIOTT.

Supreme Court of Illinois.

June 18, 1913.

Error to Circuit Court, Coles County; William B. Scholfield, Judge.

Action by the Town of Mattoon against E. N. Elliott. There was a judgment for defendant, and plaintiff brings error. Cause transferred to the Appellate Court.

[259 Ill. 73]

[102 N.E. 252]

James W. & Edward C. Craig and Donald B. Craig, all of Mattoon, and Charles C. Lee, of Charleston, for plaintiff in error.

Bryan H. Tivnen, of Mattoon, and Henry A. Neal, of Charleston, for defendant in error.

CARTER, J.

This was an action in the circuit court of Coles county for the recovery of a penalty for the obstruction of a public highway in the town of Mattoon. The commissioners of highways refused to bring the suit, and Fred Block, Sr., the owner of land adjoining the highway, gave the cost bond, and the suit was instituted in the name of the town. The declaration consisted of three counts. Defendant in error filed a plea of nil debet and a special plea of estoppel in pais. To this latter plea plaintiff in error demurred. The trial court having overruled the demurrer, plaintiff in error elected to stand by it. Judgment of nil capiat was entered and that the defendant in error recover his proper costs. To reverse that judgment this writ of error has been sued out.

[259 Ill. 74]The three counts of the declaration charged, in varying language, that said road had been laid out upon a certain line, and that defendant in error had constructed a fence in said road. Defendant in error's plea of estoppel in pais averred that the highway commissioners entered an order, under section 37 of the Road and Bridge Act (Hurd's Stat. 1911, p. 2001), authorizing a resurvey of said road; that said resurvey was made, and after it had been completed and the road staked out upon the line of the resurvey, defendant in error erected the fence referred to in each count of the declaration, ‘upon the west boundary line of said resurvey, and not upon any other line, by reason whereof the defendant says that the plaintiff is estopped from claiming that the road runs upon a different line from that found in the resurvey, as aforesaid, and is also estopped from setting up any claim against defendant for the construction and placing of said fence upon said line of the said survey,’ etc. A motion was made by defendant in error to transfer this cause of the Appellate Court on the ground that no freehold is involved, and that this court is without...